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USPS CERTIFIED MAIL NO: 70100290000151818070 IN THE CIRCUIT COURT OF THE

FEDEX AIRBIL NO: 872650965714 NINETEENTH JUDICIAL CIRCUIT IN


AND FOR ST. LUCIE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION


CASE NUMBER: 56-2008-CA-000066
JUDGE: LARRY SCHACK

EMC MORTGAGE CORPORATION

Plaintiff
VS:

KAREN A. KRONDES, ET AL
Defendants(S) . July 29, 2010
______________________________________ .1

MOTION TO DISMISS WITH PREJUDICE


COME NOW, the Defendants, Karen A. Krondes and John J. Krondes, in the above-entitled action

hereby move the court to Dismiss the Plaintiff, EMC Mortgage Corporation's Foreclosure Lawsuit with

Prejudice for a showing of Fraud Upon The Court and for the following valid and convincing reasons:

1. The Plaintiff has egregiously violated Discovery Rules and remains in violation status for

multiple failures to comply with the Defendants' served discovery requests within reasonable

and permitted time for pleading, pursuant to F.R.C.P. Rule 1.350.

2. The Plaintiff, for over One Year (13 Months) failed to produce any valid response to the

Defendant's First (1st) Request For Production which was served on March 5, 2009. Plaintiff,

EMC Mortgage Corporation, further failed to respond within Thirty (30) Days to the Defendant's

associated Motion To Compel, served on December 24,2009. The Plaintiff has apparently

filed unauthorized objections to the Defendants' initial Request For Production in April 2010,

without any legal standing and or the consent of the Defendants or the Court (Exhibit A). The

Defendants, Karen A. Krondes and John J. Krondes, did not receive any copy of the stated

unauthorized objections, but rather discovered such filing by requesting a Docket Report from

the Clerk's Office in Fort Pierce. The Court lacks jurisdiction to allow such fate responses.
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RULE 1.350 PRODUCTION OF DOCUMENTS AND THINGS

(b) Procedure. Rule 1.350(b) clearly allows for a period of only Thirty (30) Days for which to produce a
response to a Request For Production. Rule 1.350(b) stipulates in part that ... The party to whom the
request is directed shall serve a written response within 30 days after service of the request, except that
a defendant may serve a response within 45 days after service of the process and initial pleading on that
defendant.

3. The Defendants, Karen A. Krondes and John J. Krondes, served a distinctly different and new

Second (2nd) Set Of Request For Production upon the Plaintiff EMC Mortgage Corporation.

The Second served request, dated March 17,2010, was delivered via USPS Certified Mail No.

70092250000236864374 on March 19,2010 (See Exhibit B). To date there has been no

response by the Plaintiff to the stated a= Request For Production, and importantly, the Plaintiff

failed to request from the court any extension of time within the legal time allowed (Emphasis

Added).

4. The Court has no Jurisdiction to allow the Plaintiff, EMC Mortgage Corporation, to attempt to

file unconscionably late responses and objections to the Defendants' multiple discovery

requests, when no prior legal plea for time was requested and or granted. The Plaintiff abused

the Florida Rules Of Court and chose to ignore the Rules of Discovery and the Defendant's

Motion To Compel within proper time for pleading.

Very recent Florida Case Law has set pellucid precedent that Plaintiffs in Foreclosure

Lawsuits ignoring and failing to comply with discovery rules shall be sanctioned and such

complaints and lawsuits dismissed with prejudice. The Defendants Here-Now cite the case of

U.S. Bank National Assoc., As Trustee, ET AL vs. Ernest Harpster, 6th Judicial Circuit

Court In And For Pasco County Florida, (Case No. 51-2007-CA-6684ES). On March 25, 2010,

Circuit Judge Lynn Tepper dismissed the Plaintiff's Complaint with Prejudice based on a

myriad of abuses by U.S. Bank National Assoc. and its counsel Law Offices Of David J. Stern.

The Court found that the Plaintiff failed to produce answers to Interrogatories for a period of 26
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Months and further failed to produce responses to the Request For Production propounded in

July 2009 (8 Months Up to date of Dismissal). The Pasco County Court ordered that as a

sanction for egregious failure to comply with discovery rules, the Plaintiff shall be prohibited

from presenting the alleged Promissory Note to the Court (See Exhibit C).

5. The Plaintiff, EMC Mortgage Corporation's Complaint is deceptive, fraudulent, and a sham

pleading [Rule 1.150(a)]. EMC Mortgage Corporation filed and unlawfully served its complaint

with no legal standing, proof of its claims, and that it was the "Real Party In Interest". The

Plaintiff attached to its complaint as proof of its interest and standing an alleged Mortgage with

a distinctly different and separate entity, namely Wells Fargo Bank, N.A .. Plaintiff deceptively

and misleadingly plead that the alleged Mortgage was subsequently assigned to EMC

Mortgage Corporation by virtue of an assignment to be recorded. EMC Mortgage in reality had

no evidence at time of filing that it had any lawful interest in the Defendant's home and alleged

mortgage and or note, and or that any agreement or assignment ever existed between Wells

Fargo Bank, N.A. and EMC Mortgage Corporation with respect to the subject property.

6. The Plaintiff, EMC Mortgage Corporation, by and through its Counsel Law Offices Of David J.

Stern, knew and or should have known that the allegations in its complaint were materially

false, as Florida Law and the Florida Rules Of Civil Procedure mandate that all such contracts,

notes, mortgages, assignments, or other document supporting the claims of the complaint, are

required to be attached and thus part of the whole of the complaint as proof of valid evidence.

7. The Plaintiff, EMC Mortgage Corporation ignored Florida Law and failed to attach a valid

Assignment Of Mortgage to its complaint; thus as a matter of law said complaint has no legal

sufficiency and is void. It is a requirement in Florida, pursuant to F.R.C.P. Rule 1.130(a), to

attach any and all Instruments, Contracts, and or other documents material to the pleadings,

showing proof of standing.


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Florida Rules of Civil Procedure

RULE 1.130 ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS

(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon
which action may be brought or defense made, or a copy thereof or a copy of the portions thereof
material to the pleadings, shall be incorporated in or attached to the pleading.

8. Plaintiff, in Count I of the Complaint, further made intentional fallacious claim that it was the

owner and that it holds the Note and Mortgage. In Count II however, Plaintiff contradicts itself

and puzzlingly discloses that it is not presently in possession of the original Note and

Mortgage. The herein stated inconsistent claims in EMC Mortgage Corp's Complaint allege

facts that cancel each other out, and leave said Plaintiff with no credibility and no definitive

statement of facts (See Exhibit D).

9. The Plaintiff, EMC Mortgage Corporation, deceptively states in its Complaint that the Note and

Mortgage are lost, destroyed or stolen, without disclosing to the Court and Defendants which

of these wavering scenarios is their alleged true claim.

10. EMC Mortgage Corporation declares in its Complaint that it cannot obtain possession of the

Note and Mortgage because their whereabouts cannot be determined. Plaintiff and its counsel

Law Offices Of David J. Stern have a never ending duty to disclose new evidence; and at no

time have ever filed any pleading, or served any party to this action with proper "legal

notification" that Plaintiff has found the original Note and Mortgage. Defendants, Karen A.

Krondes and John J. Krondes, allege that any attempt to produce in this action an original Note

and Mortgage is a fraud upon the court, and such documents are believed to be illegally

manufactured, should be stricken and disallowed as evidence.

11. The Florida Supreme Court recently amended F.R.C.P. Rule #1.110(b) making it mandatory

that mortgage foreclosure complaints be verified. The Supreme Court specifically noted that

the primary purposes of this new amendment are in part to conserve judicial resources that are
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currently being wasted on inappropriately pleaded "lost note" counts and inconsistent

allegations. The Florida amendment additionally is made to prevent defendants from suffering

harm resulting from suits brought by Plaintiffs not entitled to enforce the note; and to allow

courts greater authority to sanction plaintiffs who make false allegations.

12. The First District Court of Appeals in Ohio has set crucial recent foreclosure case law, in Wells

Fargo Bank, N.A. v. Byrd (2008), in where a Plaintiff who fails to submit proof that it is the

"Real Party In Interest" when the complaint is filed is subject to dismissal with prejudice.

"A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual
or a representative capacity, some real interest in the subject matter of an action." Wells
Fargo Bank, v. Byrd, 178 Ohio App.3d 285, 2008-0hio-4603, 897 N.E.2d 722 (2008). It
went on to hold, " If plaintiff has offered no evidence that it owned the note and mortgage
when the complaint was filed, it would not be entitled to judgment as a matter of law."

13. Florida Rules Of Civil Procedure, Rule 1.420(b) provides, in relevant part, that "any party may

move for dismissal of an action or of any claim against that party for failure of an adverse party

to comply with these rules or any order of the court."

14. The Plaintiff's Complaint is purported by typed name, to have been written by Karina M.

Musella; although, it appears that a second person is listed on the signature line as signing for

Attorney Musella. Both signatures are illegible and unidentifiable. The Complaint and its

allegations are invalid due to either or both, concealment of the true signor and author, and or

fraud by false and leqally unauthorized presentment by a third party on behalf of the interests

of Karina M. Musella (See Exhibit D - Pg. 3).

15. The Defendants filed an Answer and Counterclaim to the Plaintiff's Complaint on March 5,

2009 initially by Fax Transmission. The Plaintiff has failed within the initial Thirty (30) Days

and to this date to file an Answer to the Defendants' Counterclaim as required by F.R.C.P. -

Rule 1.1OO(a). EMC Mortgage Corporation has violated Florida Rules Of Pleading, has no

standing, and is barred from any attempt at answering said Counterclaim Fourteen (14)

Months after its filing.


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16. The improper and unlawful Judgment in this Foreclosure Lawsuit has already been vacated

due to the alleged myriad of misconduct of the Plaintiff, its agents, and or counsel, Law

Offices Of David J. Stern. Plaintiff, EMC Mortgage Corporation, together with its servicing

agent Provest LLC, and or Law Offices Of David J Stern, falsely claimed it had served the

Defendants lawfully with the Complaint in this matter; all the while having knowledge through

the attached exhibit information (Wells Fargo Mortgage), "alleged Mortgage", that Defendants

Karen A Krondes and John J Krondes did not live at the addresses as purported, but at the

Homestead Address of 110 Woodside Green, #2A, Stamford, CT 06905. Plaintiff was earlier

able to unconscionably attain a Default Judgment against said Defendants, while they were

unaware of this action and its pleadings, as all such documents were mailed to incorrect and

invalid addresses.

17. The Plaintiff, EMC Mortgage Corporation, Lacks Standing. The presentment of materially false

statements and claims of ownership are a Fraud Upon The Court. EMC Mortgage Corporation

is not the "Real Party In Interest" and is not authorized to bring or maintain this foreclosure

action.

18. The Defendants, Karen A Krondes and John J Krondes Here-Now respectfully ask the Court to

dismiss the above-cited action pursuant to the Florida Rules Of Civil Procedure, Rules

1.210(a), 1.140(a)(1 )&(b)(7), and 1.130(a) respectively. On the date this action was

commenced, said Plaintiff had no proof that it was the "Real Party In Interest".

19. This Honorable Court lacks Subject Matter Jurisdiction to allow this lawsuit and fraudulent

foreclosure attempt to continue [F.R.C.P., Rule 1.140(b)(1)].

20. Plaintiff, EMC Mortgage Corporation, and counsel Law Offices Of David J Stern knowingly

made materially false representations to the Court and Defendants by the mendacious claims

made in its complaint, with such declarations having the express purpose of misleading and
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deceiving the reader. Said parties falsely stated in Count I that this Court has jurisdiction over

the subject matter in their Complaint.

21.ln determining whether the plaintiffs come before this Court with clean hands, the primary

factor to be considered is whether the plaintiffs sought to mislead or deceive the other party,

not whether that party relied upon plaintiffs' misrepresentations. Stachnik v. Winkel, 394 Mich.

375, 387; 230 N.W.2d 529, 534 (1975).

PLAINTIFF LACKS STANDING TO BRING THIS ACTION IN FLORIDA

22. Plaintiff, EMC Mortgage Corporation, lacks the legal standing to sue and seek foreclosure on

the Defendants, Karen A Krondes and John J Krondes, in the State Of Florida. EMC Mortgage

Corporation was not a party to the mortgage contract attached to the Complaint. Pursuant to

Florida Law, only Wells Fargo Bank, N.A. would legally have been able to initiate the above-

cited action.

23. Plaintiff failed to attach to the Complaint any valid legal evidence that EMC Mortgage

Corporation had any relationship to the original alleged lender Wells Fargo Bank, N.A.

Plaintiff's "legally insufficient" Complaint at best, illustrates that Wells Fargo Bank, N.A., a

different and separate non-joined company, may have had some prior relationship and

agreement with the Defendants Karen A. Krondes and John J. Krondes.

24. According to Plaintiff's own spurious and misleading account of standing, EMC Mortgage

Corporation legally has stated in its Complaint that at the time of filing of this action, some

other person(s) and or entity other than Plaintiff was in possession of the alleged Note and

Mortgage, confirming that alleged ownership and standing belonged to a party(s) other than

Plaintiff. EMC Mortgage Corp. further stated that it cannot reasonably obtain possession of the

alleged Note and Mortgage because their whereabouts cannot be determined.

25. The copy of the complaintand specificallythe Exhibitsso attached,servedimproperlyuponthe Defendants,

were completelyillegiblewith numeroussectionsand lines stricken,and blackedout with dark BlackLines.


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26. The Plaintiff, EMC Mortgage Corporation, is legally barred from entering into evidence any

alleged proof of standing per its refusal to address such demand for proof and accounting in

multiple served Requests For Production.

27. EMC Mortgage is not the "Real Party In Interest", had no proof of such at commencement of

this lawsuit showing authorization to bring this action in Florida. In re: Shelter Development

Group, Inc., 50 B.R. 588 (Bankr. S.D.Fla. 1985) [It is axiomatic that a suit cannot be

prosecuted to foreclose a mortgage which secures the payment of a promissory note, unless

the Plaintiff actually holds the original note, citing Downing v. First National Bank of Lake City,

81 SO.2d 486 (Fla. 1955)]; Your Construction Center, Inc. v. Gross, 316 SO.2d 596 (Fla. 4th

DCA 1975), See also 37 Fla. Jur. Mortgages and Deeds of Trust '240 (One who does not have

the ownership, possession, or the right to possession of the mortgage and the obligation

secured by it, may not foreclose the mortgage).

PLAINTIFF'S FORECLOSURE ACTION IS A FRAUD UPON THE COURT

28. Plaintiff, EMC Mortgage Corporation, unlawfully, fraudulently, and with intent to deceive,

misrepresented to this Honorable Court that it had legal standing to file this action; wherein it

had no legal authority to seek foreclosure on a mortgage which Plaintiff knew was in the name

and possession of Wells Fargo Bank, N.A.

29. The Plaintiff initiated this foreclosure action with fraudulent purpose, attempting to manipulate

the Court to achieve an otherwise lawful purpose by unlawful means.

30. Pursuant to statutory protection provided by Florida Rules Of Civil Procedure, Rule 1.540(b),

the unlawful judgment originally secured by Plaintiff and its counsel Law Offices Of David J

Stern in this matter was vacated and ordered void (6/4/2009) due to the misconduct and

fraudulent attempt to take the Defendants' home. In addition to instituting the foreclosure

action with no legal standing, Plaintiff, its counsel and or its agents employed illegal and

deceptive methods of service of process and subsequent pleadings, securing a default


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judgment by servicing legal documents to the Defendants at addresses which such parties

knew and or should have known were invalid.

31. The factual claims made by the Defendants in their Motion To Vacate Judgment, Motion For

Rehearing, and Counterclaim are incorporated herein this Motion and together with the

charges made above and throughout this motion provide sufficient evidence that the Plaintiff

and its counsel Law Offices Of David J Stern engaged in fraud and persisted with an illegal

purpose to seek foreclosure on the Defendants' home.

32. Whereas, per provision of F.R.C.P. 1.540(b), this Court has jurisdiction to Dismiss This Lawsuit

with Prejudice upon such finding of Unconscionable and irresponsible conduct.

33. After Reversal Of Plaintiff's Judgment per Order Of The Court on 6/4/2009 in the above-cited

Krondes Case, EMC Mortgage Corporation (Plaintiff) and its counsel Law Offices Of David J

Stern have had over One (1) Year to produce sufficient valid evidence to prove its case.

During the stated time period, Plaintiff has refused and or otherwise failed to comply with the

Defendants' multiple discovery requests within authorized and accepted time for pleading.

Through its injudicious violations of Florida Rules Of Pleading and as a result of Plaintiff's

quietus, EMC Mortgage Corporation is juridically barred from further attempts to offer

evidence, specifically of the nature of which was sought through discovery; and thus, has

legally failed to prove its case.

34.ln the year following the vacating of the Judgment in this matter, numerous courts in the State

Of Florida and throughout America have began to discover that the implementation of fraud

and misrepresentation by Plaintiffs and or their attorneys in Foreclosure proceedings is

Rampant. On April 30, 2010, the Tampa Tribune reported that the Attorney General Of The

State Of Florida has launched an investigation pertaining to fraudulent foreclosure filings by

Foreclosure Mills in Florida. The Office Of The Attorney General has confirmed it is
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investigating the firm, Tampa-based Florida Default Law Group, for what "appears to be

fabricating and/or presenting false and misleading documents in foreclosure cases."

35. Plaintiff's counsel Law Offices Of David J Stern in very recent months has had scores of its

own Foreclosure Lawsuits Dismissed with Prejudice and Judgments Vacated as a result of the

increased scrutiny of judges and courts in Florida. Pasco County Florida Circuit Judge Lynn

Tepper in a recent interview stated The deluge of foreclosures makes the process "fraught with

potential for fraud". On March 25, 2010, in the case of US. Bank National Association, As

Trustee, Et AL vs. Ernest E. Harpster (Case No. 51-2007 -CA-6684ES) 6th Jud. Circuit Court

For Pasco County, Judge Lynn Tepper dismissed the Plaintiff's complaint and case with

prejudice based on amongst other things, the recording and filing of a fraudulent Assignment

Of Mortgage and fraud intentionally perpetrated upon the Court by Plaintiff and its counsel Law

Offices Of David J Stern (See Exhibit C).

On March 11,2010, in Brevard County, pursuant to F.R.C.P. 1.540(b), the Judgment Of

Foreclosure was vacated in another Stern case Deutsche Bank National Trust Company, As

Trustee, ET AL vs. Rom Mak, ET AL (Case No. 05-2007-CA-19763). The 18th Judicial Circuit

Court in Brevard County found that the foreclosure proceeding instituted by Plaintiff and its

counsel Law Offices Of David J Stern was fraudulently initiated without the Plaintiff having

legal standing and proof of ownership or possession of the Note and Mortgage.

36. Notably, In the recent case of Wells Fargo Bank, N.A. vs. Christopher J. Chesney. ET AL

(Case No. 51-2009-CA-006905) in the 6th Judicial Circuit Court For Pasco County; Circuit

Court Judge Stanley R. Mills on February 22, 2010 Ordered that Defendant's Motion To

Dismiss is Granted; as Plaintiff failed to attach a valid assignment to the Complaint. The court

found that the Note and Mortgage attached to the Complaint were in favor of Washington

Mutual, not the current Plaintiff Wells Fargo Bank, N.A in that case.
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37. Defendants' additionally cite one of the newest Florida Foreclosure cases: US Bank National

Association, As Trustee, ET AL vs. William Shane McLeod, ET AL (Case No. 55-2008-CA-

2124) in the ih Judicial Circuit Court For St. Johns County. On May 7,2010, pursuant to

F.R.C.P. - Rule 1.540(b), Circuit Court Judge J. Michael Traynor Dismissed With Prejudice the

stated case based on fraudulent misrepresentations to the Court as to the Real Party In

Interest. The Court found that the US Bank National Assoc suit was fraudulently filed, as

Plaintiff was not the true owner of the Note and Mortgage at the time the action was filed. On

5/10/2010 the Attorney General initiated an Investigation of the instant case and Plaintiff's

Counsel, Florida Default Law Group, Court Entry No. 50.0000.

THE AFFIDAVITS FILED ON BEHALF OF PLAINTIFF


IN THIS LAWSUIT ARE INSTRUMENTS OF FRAUD

38. The Affidavits filed in this foreclosure action by Plaintiff, its counsel, and or other agents are

fraudulent, defective, made in bad faith and with intent to deceive (Exhibits E, F, G, H, I).

39. The calculated construction and filing of false, misleading, and invalid affidavits constitutes

conduct which is unconscionable and provides grounds for dismissal with prejudice per

statutory provision of F.R.C.P. Rule 1.540(b), 1.510(e)(g), 1.420(b), 1.150.

40. Florida Rule 1.51 O(e) stipulates Affidavits of a party seeking Summary Judgment ....

"shall be made on personal knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify to the matters

stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit

shall be attached thereto or served therewith. The court may permit affidavits to be

supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. JJ

41. Plaintiff, EMC Mortgage Corporation, its counsel Law Offices Of David J Stern, and its agent

ProVest LLC, knowingly and with intent to facilitate an unlawful speedy default judgment in this
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matter, provided alleged service of process upon the Defendants at addresses which such

parties knew and or should have known were incorrect and invalid (Exhibits E, F, J).

42. Plaintiff in COUNT I, paragraph 5 of its Complaint purports to own and hold the alleged Note

and Mortgage. In support of the allegations in said Complaint, Plaintiff attached as exhibit an

alleged Mortgage apparently between Wells Fargo Bank, N.A. and Karen A Krondes and John

Krondes. The subject exhibit, page 1 of 27 clearly states the Homestead Address of the

Defendants/Grantors to be specifically 110 Woodside Green, #2A, Stamford, CT 06705 (Ex. K)

43. Despite having exact knowledge of Defendants' true and correct homestead address, Plaintiff,

EMC Mortgage Corporation, its counsel Law Offices Of David J Stern, and its agent ProVest

LLC, conspired to claim personal In-Hand/lndividual Service was successfully made upon

Defendant Karen A. Krondes at the address of 360 West 34th Street, Apartment 5H, New York,

NY 10001 (See Exhibit E).

44. Plaintiff, EMC Mortgage Corporation, its counsel Law Offices Of David J Stern, and its agent

ProVest LLC, caused to have filed on 2/4/2008 a knowingly false Affidavit Of Service,

unambiguously asserting that a copy of the Complaint was hand delivered to Karen A. Krondes

at the above-stated Manhattan address on 1/17/08, even though Ms. Krondes had moved from

that address on11/30/2006 to the above-cited Stamford Connecticut homestead

locatiorulixhibits E & J).

45. Plaintiff, EMC Mortgage Corporation, its counsel Law Offices Of David J Stern, and its agent

ProVest LLC, additionally caused to have filed on 2/4/2008 a Second (2nd) knowingly false

Affidavit Of Service, unambiguously asserting that a copy of the Complaint was delivered on

1/19/08 to the Usual Place Of Abode of John Krondes at 491 White Oak Shade Rd., New

Canaan, CT 06840, although John Krondes never lived at this address and such parties had

exact knowledge that Mr. Krondes lived in a different town at the address of 110 Woodside

Green, Stamford, CT 06905 (See Exhibit F).


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46.The Plaintiff, EMC Mortgage Corporation, by and through its counsel Law Offices Of David J

Stern constructed and caused to be filed a fraudulent and fallacious Affidavit In Support Of

Plaintiff's Motion For Summary Judgment on 2/13/2009. Plaintiff and its counsel knowing that

they had filed a sham Complaint, untruthfully and reprehensibly make claim in the stated

affidavit that EMC is the owner and holder of the Note and Mortgage, when in fact such parties

were knowingly concealing material information that Plaintiff had no standing and authority to

institute the above-cited Krondes foreclosure action, and that a distinctly different entity Wells

Fargo Bank, N.A. was the alleged "Real Party In Interest" (See Exhibit G).

47. The Affidavit In Support Of Plaintiff's Motion For Summary Judgment is made in "bad faith"

and constitutes a Sham Pleading per F.R.C.P. 1.150, and is further in violation of Rule

1.510(e)(g). The stated affidavit is not based on personal knowledge as Rule 1.51 O(e)

mandates, as the true withheld personal knowledge of the maker(s) of this affidavit is that

Plaintiff had no proof of legal standing at time of filing of this action and thus, there was no

default, and no money was owed to this Plaintiff EMC Mortgage as alleged in the subject

affidavit (Exhibit G)

48. Paragraph #4 of the Affidavit In Support Of Plaintiff's Motion For Summary Judgment is a

willful and known misrepresentation. The Plaintiff, and counsel Law Offices Of David J Stern

clearly knew that they were making a materially false statement of facts by declaring that "each

and every allegation in the Complaint is true." (See Exhibit G)

49. The wavering allegations in the Plaintiffs Complaint and the misstatements in the subject

Affidavit In Support Of Plaintiff's Motion For Summary Judgment conflict with each other and

legally cancel each other out. In said affidavit, Plaintiff and its counsel claim EMC Mortgage is

the holder of said Note and Mortgage, when in fact said parties knew Wells Fargo Was the

alleged holder, as the complaint alleged there would be an assignment "to be recorded",

possibly sometime in the future. Secondly, Plaintiff definitively claimed in COUNT II of the

Complaint that it was not in possession of the original Note and Mortgage, and that their
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whereabouts cannot be determined; hence, making it a legal impossibility to be the holder of

the stated documents (See Exhibits D & G).

50. When exhibits are inconsistent with Plaintiff's allegations of material fact as to who the real

party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County

Canvassing Board, 772 SO.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424

So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development

Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).

51. Cheryl Samons, of Law Offices Of David J Stern, the alleged signor and maker of the subject

Affidavit In Support Of Plaintiff's Motion For Summary Judgment committed perjury and made

materially false statements under sworn oath in said filed document; such conduct which is a

violation of Florida Statute 92.525(2)(3) Verification Of Documents.

52. Ms. Cheryl Samons makes incongruous attestations in the above stated affidavit which

additionally have the legal effect of cancelling each other out. Ms. Samons' vacillating

testimony first says in Paragraph 3, that she has direct access to the business records of the

Plaintiff concerning the alleged Note and Security Agreement, the Mortgage and other loan

documents which are the subject of this lawsuit. Ms Samons undecidedly also states that "or

have been provided" with such stated documents. The legal effect of Ms. Samons alleged

disclosure is one of a material misrepresentation. In simple layman's terms, Cheryl Samons is

really saying that neither statement is true and verifiable, and no such evidence was ever

proven to be in her possession at the time of filing of said affidavit on 2/13/2009 (Exhibit G).

53. Cheryl Samons, in representation of Law Offices of David J Stern and allegedly EMC

Mortgage, purports to have personal knowledge of the facts stated above regarding the

alleged Note and Mortgage. Such personal knowledge was allegedly gained by access or

release of mortgage documents by an undisclosed, unverified alleged "person with knowledge"

(See Exhibit G).


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54. The alleged subject Affidavit In Support Of Plaintiff's Motion For Summary Judgment.

supposedly made by Cherly Samons, is purported to be notarized; however the document is

not dated, leaving the notarization incomplete and the entire document legally invalid, void,

and powerless. The failure to provide the date certain of the notorial act is a violation of

Florida Statute 117.05(4)(d). (See Exhibit G)

55. The Affidavit In Support Of Plaintiff's Motion For Summary Judgment in addition, and despite

being legally void, fails to show that Cherly Samons and or any other attorney or employee of

David J Stern is qualified, competent and credible as to providing testimony at any hearing or

trial which would produce any admissible evidence. Moreover, case law in the United States is

well established that an attorney cannot testify and authenticate documents for a client where

counsel was not a party, and has no personal knowledge of the facts and transaction, See Key

Bank of Me. v. Lis;, 225 AD2d 669, 669 (2d Dept 1996).

56. Cheryl Samons, the alleged Maker and signor of the stated Affidavit In Support Of Plaintiff's

Motion For Summary Judgment in this lawsuit was recently deposed, on May zo", 2009, in

another relevant foreclosure case Deutsche Bank National Trust Company, As Trustee, ET AL

vs. Belourdes Pierre, ET AL (Case No. 50-2008-CA-028558) the 15th Judicial Circuit Court in

Palm Beach County. Cardinally, the testimony given by Ms. Samons in the herein stated case

is a stark realization that virtually every affidavit and or other document made or signed by

Cheryl Samons on behalf of Law Offices Of David J. Stern is a fraudulent instrument. Ms.

Samons makes admission that she literally walks from floor to floor in the Four (4) Floor Stern

Office, signing well over a hundred assignments and affidavits a day, without reading any of

them. Cheryl Samons, who while acting in an alleged official capacity in such documents,

attests to having personal knowledge of the facts set forth within. Shockingly, and with

extreme contrast, Cheryl Samons admits in the herein cited deposition to having no

knowledge whatsoever of what she's signing [Emphasis Added] (See Exhibits G & L).
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57.The other attached Affidavits in support of Plaintiff's Motion For Summary Final

Judgment (which has already been vacated), are likewise void and serve no legal

purpose, as they also fail to show an exact date certain of the notarized act, making

such documents invalid and unusable per Florida Law; Florida Statute 117.05(4)(d) Use

Of Notary Commission; Unlawful Use (See Exhibits H & I).

58. Founded upon the personal testimony of Cheryl Samons in the above-cited Deutsche

Bank deposition, that she signs hundreds of different documents a day, without knowing

what she's signing, and the striking resemblance of the unidentifiable, large circle like

signatures of Cheryl Samons and Attorney Karina Musella on such legal documents and

pleadings; the Defendant's Karen A. Krondes and John Krondes allege and charge

that Cheryl Samons is committing a fraud by illegally signing legal papers as an

unauthorized third party for other individuals, purporting and representing to be

someone else other than Cheryl Samons. On April 29, 2010, relevantly, David J. Stern

Foreclosure Paralegal Shannon Smith in Deposition for the matter of Citimortgage, Inc.

VS. Dennis Brown (Case No: 08-011097) 1ih Judicial Circuit Court in Broward County,

FL, admits to signing Cheryl Samons name on documents (transcript of Deposition,

4/29/2010,pg. 21- Lines 20-24) - (See Exhibits G, H, M, N).

59.The Defendant's, Karen A. Krondes and John Krondes, charge that there is sufficient

material information provided herein to find and allege that someone other than the true

Karina M Musella signed the Plaintiff's Complaint; further making such pleading an

instrument of fraud and legally invalid, due to additional conduct the nature which is

Unconscionable (See Exhibit D - pg. 3).


(17)

60.0n April 7, 2010, in the case of GMAC Mortgage, LLC VS. Debbie Visicaro, ET AL (Case

No. 50-2008-CA-028558) the e" Judicial Circuit Court in Pinellas County, Judge Anthony

Randolino granted Defendant's motion to set aside the previously improvidently entered

summary judgment. The Court found that after extensive review of case law, Affidavits that are

based on hearsay and not personal knowledge are inadmissible and cannot be considered at a

summary judgment. Judge Rondolino, in said hearing went on to say "I really honestly don't

have any confidence that any of the documents the Courts are receiving on these mass

foreclosures are valid" (transcript of hearing 4/7/2010, pg. 7, lines 11-14) (See Exhibit 0).

PLAINTIFF'S FAILURE TO COMPLY WITH REQUEST FOR VALIDATION


OF ALLEGED DEBT VIOLATES FEDERAL LAW

61.Defendants, Karen A. Krondes and John Krondes, advise the Court that there is no valid

controversy in this matter as Plaintiff, EMC Mortgage Corporation, has failed to comply and

validate the alleged debt in an administrative process propounded upon the Plaintiff on

December 30, 2009 and received by EMC on January 4, 2010, pursuant to stipulation and

provision of Federal and Private Law. Through its voluntary quietus, Plaintiff has tacitly agreed

that there is no debt owed to Plaintiff; and any prior belief or understanding of such alleged debt

or claim is therefore cancelled, void, unverifiable, and legally uncollectable.

JUDICIAL NOTICE I COGNIZANCE WITH CLAIM OF RIGHTS

1. The Defendants, Karen A. Krondes and John Krondes, as American Citizens, hereby declare
and give "Notice" that they invoke the powers and protections of the Constitution and Bill of
Rights of the State Of Florida and the Constitution and Bill of Rights of the United States Of
America, promised them, so that an unequivocally, and unconditionally fair, just, and unbiased
proceeding and conclusion of this lawsuit shall be effected.
2. The Defendants Here-Now invoke Judicial "Notice" that this Court accord the public statutes
of the United States and of every State and jurisdiction of the United States and judicial
judgments/decisions of the United States and of various states and jurisdictions of the United
States cited herein the full faith and credit that Article IV, Section I of the United States
(18)

Constitution commands; that Defendants claim the due process and equal protection under
those favorable statutes and judicial decisions outside of Florida.

JURISDICTION OF THE 19th JUDICIAL CIRCUIT COURT FOR ST. LUCIE COUNTY

1. Defendants Here-Now address this Court and all parties concerned and provide proper
legal "Notice", that the 19th Judicial Circuit Court in St. Lucie County, Florida has the absolute
power and jurisdiction to hear and ultimately grant defendants' verified Motion and Request to
Dismiss this matter With Prejudice based on several lawful and ethical grounds.
Defendants Make Affirmatively Known, that they bring and addresses this Motion to the
sound discretion of the Court for its adjudication. Defendants, in invoking their rights of the
United States Of America and the State Of Florida attest that this Court has intrinsic
power, independent of statutory provision, to vacate any judgment and or dismiss with
prejudice any foreclosure lawsuit filed and or obtained by fraud, duress, unconscionability or
gross and inexcusable negligence. Such stated conditions hence reflect the current destructive
state of affairs in the State Of Florida, with respect to the epidemic and plague of foreclosure
filings laden with fraud which is unlawfully displacing our citizens and ruining our economy.

Defendants raise the point, that this court has no Jurisdiction to allow a Plaintiff to maintain
an action of foreclosure based on a fatally defective complaint which is a misrepresentation of
known facts, based on hearsay, fails to identify the "Real Party In Interest", and ultimately
neglects to state a recognizable legal claim.

LACK OF STANDING AND JURISDICTION FOR TESTIMONY OFFERED BY ATTORNEYS

1. NOTICE IS HEREBY GIVEN, that this Court has no Jurisdiction to allow any attorney to testify
or authenticate evidence for its client. All testimony and affirmations offered by counsel on
behalf of a client is "Hearsay" under the rules of evidence and generally cannot advance
substantive proof. It is further prohibited under Florida Law for an Attorney to knowingly
make false statements of material fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer. All
agreements concerning a Lawyer's representation of a client must accord with the Florida
Rules of Professional Conduct and other law (See rules 4-3.3(a)(2)(4), 4-1.2(d), 4-3.4(b), 4-
8.4(c), 4-8.4(d)). An attorney offering testimony for a client based on material facts of which he
(19)

has no personal knowledge constitutes professional misconduct, unconscionability, falsification


of evidence, perjury, and a fraud upon the Court. An Attorney in a Foreclosure Matter has no
Subject Matter Jurisdiction to authenticate any document relating to the alleged Loan, Note
and Mortgage, as such counsel has no personal involvement or knowledge in the underlying
alleged transaction. See Key Bank of Me. vs. Lisi, 225 AD2d 669, 669 (2d Dept 1996)
("affirmation of ... attorney who had no personal knowledge of the facts ... did not constitute
proof in admissible form and it [is] without evidentiary value").
2. It is a matter of law that the Court must strike any alleged fact advanced by counsel that is not
supported by an affidavit or other authenticated document(s) from Plaintiff or by Plaintiff's
corporate representative(s) that is a proven competent fact witness with personal knowledge of
the claims, facts and documents (to authenticate) employed by Plaintiff in this matter. See
Florida Statutes §90.901 & 90.802.

90.802 Hearsay rule.--Except as provided by statute, hearsay evidence is inadmissible.


90.901 Requirement of authentication or identification.--Authentication or identification of evidence is
required as a condition precedent to its admissibility.
(20)

WHEREFORE, the Defendants, Karen A. Krondes and John J. Krondes, in this matter of EMC

Mortgage Corporation Vs. Karen A. Krondes, ET AL., respectfully move this Court to Dismiss the

Plaintiff's Action with Prejudice, and award Defendants any other and further relief which is deemed

just and proper, based on all the foregoing truthful and lawful facts. For reasons of the

implementation by Plaintiff, its counsel, and its agents of Fraud and Unconscionable conduct, coupled

with the incurable legal insufficiency of Plaintiff to maintain this action, and the lack of subject matter

jurisdiction of the Court; this wrongful foreclosure action must be Dismissed.

The Defendants

By: Date: '(-J1/IJ

By: Date: 1'/~qI tD


Karen & John Krondes
110 Woodside Green, #2A
Stamford, CT 06905

Tel: (203) 981-1926 Cell


(917) 518-6164 Cell
(203) 274-5277 Home
Email: JJKrondes@yahoo.com
(21 )

ORDER

The foregoing Motion To Dismiss With Prejudice having been presented to the court;

It is hereby ORDERED: GRANTED I DENIED

By the Court:

Clerk / Judge

Date of Order:
---------------------

VERIFICATION

The Defendants, Karen A. Krondes and John Krondes, being living souls and natural persons, have
read the foregoing and have personal knowledge of the contents thereof. The same is true based on
our own knowledge, except as to those matters which are therein upon information and belief, and as
to those claims or facts, we believe them to be true. We assert under the penalty of perjury of the
laws of the United States Of America and the laws of the State Of Florida that the foregoing is true
and correct.

CERTIFICATE OF SERVICE

The Defendants, Karen A. Krondes and John J. Krondes, hereby certify that a true and correct copy

of the foregoing Motion To Dismiss With Prejudice has been furnished via U.S. First Class Mail,

U.S.P.S. Certified Mail, and FEDEX on July 29, 2010 to the office of the Plaintiff's counsel David J.

Stern, P.A. at the address of 900 South Pine Island Road, Ste. 400, Plantation, FL 33324-3920-

3920.

USPS CERTIFIED MAIL NO: 701002900001 5181 8070


FEDEX AIRBIL NO: 872650965714

Additional Service Was Made to:

Attorney For Princess Condominium


Attn: Robert Rydzewski, Esq.
P.O. Box 66
Stuart, FL 34995
(22)

NOTARY CERTIFICATION
OfXaren 5\.. Krondes
STATE OF CONNECTICUT
COUNTY OF FAIRFIELD

DATE: Signature Confirmation made this~Day of July, 2010

Personally appeared, Karen A. Krondes personally known to me (or proved to me on the basis of
satisfactory evidence of identification) to be a person whose name is subscribed to the within
instrument(s) and acknowledged to me that she executed the same in her authorized capacity, and
that by her signature on the instrument the person or the entity upon behalf of which the person
acted, executed that instrument.

KAREN GUANZON-YALONG
NOI~..F1YPUBLIC - CONNECTICUT
M~~ission ExpiresOct. 31, 2010

'Under Oath. and/withou: Prejudice

Karen A. Krondes
(23)

NOTARY CERTIFICATION
Of Jonn J. Krondes
STATE OF CONNECTICUT
COUNTY OF FAIRFIELD

DATE: Signature Confirmation made this 2qi1 Day of July, 2010

Personally appeared, John J. Krondes personally known to me (or proved to me on the basis of
satisfactory evidence of identification) to be a person whose name is subscribed to the within
instrument(s) and acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person or the entity upon behalf of which the person acted,
executed that instrument.

~ Wi:;~1l official seal


K~REN GUANZON-YALONG
mRY PUBLIC - CONNECTICUT
My Commission Expires Oct. 31. 2010
My Commission Expires: / () ~:3/'-
AI ~
(24)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION

I. The Plaintiff's Complaint And This Action Should Be Dismissed For Numerous
And Multilevel Violations Of Florida Statutes and Florida Rules Of Civil Procedure
The unlawful acts and practices of the Plaintiff, EMC Mortgage Corporation, Its Counsel, Law
Offices Of David J Stern, Agents Provest LLC, and or others, illustrated in all the prior
pleadings of the Defendants, inclusive and not limited to all the factual statements provided
herein and throughout this motion are incorporated and constitute conduct as such which is
deemed Unconscionable, Unethical, Fraudulent, Negligent, and violates Florida Law.

A. Legal Axioms Providing Jurisdiction To The Court:


1. Florida Rules Of Civil Procedure 1.420(b) provides, in pertinent part, that "any party may move

for dismissal of an action or of any claim against that party for failure of an adverse party to

comply with these rules or any order of the court."

2. The dismissal of action or claim for failure of an adverse party to comply with the Rules of Civil

Procedure or any order of the Court operates as an adjudication on the merits. Cash vs. Airport

Mini-Storage, 782 SO.2d 983 (Fla. 3d DCA 2001).

3. Defendants, in seeking dismissal with prejudice, rely on Kozel v. Ostendorf, 629 So. 2d 817,

818 (Fla. 1993), where the supreme court adopted a "set of factors" for "determining whether

dismissal with prejudice is warranted" for failure to comply with the rules of civil procedure. The

following detailed account of the malfeasance of EMC Mortgage Corp., Law Offices Of David J.

Stern, ProVest LLC, and or other agents, is clear evidence that the six factors giving rise to

Dismissal With Prejudice, outlined in Kozel by the Florida Supreme Court, have been expressly

met (All prior pleadings by the Defendants and such evidence as cited throughout this motion is

incorporated) :

a. The disobedience and misconduct described above, throughout this motion, illustrated

through included case law, and incorporated as previously stated by Plaintiff's counsel, Law

Offices Of David J Stern, was willful and deliberate. In fact, such activity complained of is

not isolated to this case, nor example and possibility of mistake; contrarily, Law Offices of
(25)

David J Stern has employed many of the identical calculated fraudulent and inappropriate

methods and acts in like foreclosure actions all over the State Of Florida. Recent case law

previously cited within this motion stands as confirmation and justification for dismissal with

prejudice.

b. Plaintiff's counsel has very recently and within the past year had numerous judgments

vacated, complaints and foreclosure actions dismissed with prejudice as a sanction for its

misconduct.

c. Defendants charge upon information and belief, that EMC Mortgage was involved in the

disobedience, as it both directly and or indirectly, manifested to Law Offices Of David J

Stern to avoid compliance with such laws and rules. Further, EMC Mortgage provided its

counsel with much of the information for which to manufacture fraudulent tools.

d. The stated and incorporated disobedience of Law Offices of David J Stern and EMC

Mortgage has prejudiced and harmed the Defendants in many fashions. First, The

Defendants and their family have been burdened with perpetual stress and emotional harm

over the lengthy ongoing fraud and deception of the stated parties. Second, The

Defendants have incurred mounting costs in the defense of this action and the protection of

their home. Third, there has been undue delay in this action stemming from the deceit and

unconscionable acts of the stated parties, and hence, the necessary steps taken to uncover

the fraud and misconduct of the Plaintiff, its counsel and agents.

e. Plaintiff's counsel, Law Offices Of David J Stern have at no time offered any valid and

reasonable justification for its non-compliance. Similarly, the same unorthodox and non-

compliant issues frequently appear to be a constant theme in the litigation strategy of the

Stern Law Operation.


(26)

f. The above and herein stated misconduct, disobedience and gross disrespect of Florida

Laws and Rules of Court, by Plaintiff, Law Offices Of David J Stern, and its agents, in the

current case and others throughout Florida, have greatly caused systematic problems,

clogged the judicial machinery, spurred investigations, caused unusual delays, and is a

hindrance and havoc on the administration of justice.

II. Plaintiff Meets None Of The Criteria For Standing Under Florida Law

1. Standing requires that the party prosecuting the action have a sufficient stake in the outcome

and that the party bringing the claim be recognized in the law as being a real party in interest

entitled to bring the claim. This entitlement to prosecute a claim in Florida courts rests

exclusively in those persons granted by substantive law, the power to enforce the claim.

Kumar Corp. vs. Nopal Lines, Ltd, et aI, 462 So. 2d 1178, (Fla. 3d DCA 1985).

2. Under Florida Law, A separate entity cannot maintain suit on a note payable to another entity

unless the requirements of Rule 1.21 O(a) of the Florida Rules Of Civil Procedure and

applicable Florida Law are met. Corcoran vs. Brody, 347 So. 2d 689 (Fla. 4th DCA 1977).

3. Florida Rules Of Civil Procedure, Rule 1.130(a) requires a Plaintiff in a Foreclosure Action to

attach copies of all bonds, notes, bills of exchange, contracts, accounts, or documents upon

which action may be brought to its complaint. Plaintiff, EMC Mortgage Corporation, has failed

to attach any document pursuant to Florida Law that supports the allegations in its Complaint

and subsequent pleadings.

4. The Exhibit "A" provided and affixed to the Complaint by Plaintiff (alleged Mortgage by Karen

A. Krondes and John Krondes with Wells Fargo Bank, N.A.) fails to prove standing; clearly and

discordantly shows that another separate entity, if any, is the "Real Party In Interest". When

exhibits are inconsistent with Plaintiff's allegations of material fact as to who the real party in

interest is, such allegations cancel each other out. Fladell vs. Palm Beach County Canvassing

Board, 772 So. 2d 1240 (Fla. 2000); Greenwald vs. Triple 0 Properties, Inc., 424 So. 2d 185,
(27)

187 (Fla. 4th DCA 1983); Costa Bella Development Corp. vs. Costa Development Corp., 441

So. 2d 1114 (Fla. 3rd DCA 1983).

5. A Plaintiff must conclusively establish that it owned the note and mortgage at the time of filing

or the complaint must fail. The Plaintiff's failure to attach an assignment was condemned in

Jeff-Ray Corporation vs. Jacobson, 566 So. 2d 885 (Fla. 4th DCA 1990). See also Progressive

Express Insurance Company vs. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2d

DCA 2005); and BAC Funding Consortium, Inc. vs. Jean-Jacques, et aI., So. 3d, 2010 WL

476641 (Fla. 2d DCA 2010).

III. Asignments and Affidavits Based On Hearsay Are Not Admissible Evidence In Florida

1. In the case of GMAC Mortgage, LLC vs. Debbie Visicaro, et ai, 6th Judicial Circuit Court in

Pinellas County (Case No. 50-2008-CA-028558), in Hearing of April 7,2010, Judge Anthony

Rondolino in ruling on Hearsay stated "I'm also enlightened by Jones Versus Florida Workers'

Compensation, which is a 2001 2nd District case that finds that the affidavit was insufficient in

that it had allegations that all the assertions and allegations in the complaint are true, that kind

of an affidavit is insufficient" (Hearing before Hon. Anthony Rondolino, April 7, 2010, transcript

pg. 20, lines16-22).

2. Judge Anthony Rondolino in the above-cited case, Hearing of April 7, 2010 further stated, "I

also reviewed Hurricane Boats versus Certified Industrial Fabricators and found that affidavit to

be insufficient when it related to the allegations in the complaint being true" (transcript,

4/7/2010, pg. 20, lines 23-25 & pg. 21, lines 1-2).

3. Regarding the inadmissibility of false and misleading "Hearsay" affidavits in foreclosure

lawsuits, Judge Anthony Rondolino, in Hearing on April 7,2010, in the matter of GMAC

Mortgage, LLC vs. Debbie Visicaro, et ai, 6th Judicial Circuit Court in Pinellas County (Case

No. 50-2008-CA-028558), by the Court said exactly, "You know what I'd really like to see? I'd

like to see in one of these cases where a defense lawyer cross-examines, takes a deposition
(28)

of these people, and we can see whether they ought be charged with perjury for all of these

affidavits" (transcript, 4/7/2010, pg. 15, lines 20-25).

4. In Florida, even statements made in official Police Reports are considered Hearsay and are

deemed unsubstantiated and thus inadmissible as evidence. Information "contained in police

reports is ordinarily considered hearsay and inadmissible in an adversary criminal proceeding."

Burgess v. State, 831 So. 2d 137, 140 (Fla. 2002).

5. The "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein." Fla. R. Civ. P. 1.51 O(e) (emphasis added).

When a supporting affidavit does not comply with these requirements, it is legally insufficient to

support the entry of summary judgment in favor of the moving party. See, e.g., WEdge" v.

Kunderas, 910 So. 2d 953, 954 (Fla. 2d DCA 2005) (noting that affidavit in support of action for

reformation based on mutual mistake was incompetent when it contained allegations

concerning matters about which the affiant could not have personal knowledge).

6. In Florida, abundant case law has well established precedent that Affidavits which are not

based upon the affiant's personal knowledge must be stricken. Defendants cite the case of

Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993). In the Capello case,

the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as

Capello's affidavit in opposition was not based upon personal knowledge and therefore

contained inadmissible hearsay evidence. See also Doss v. Steger & Steger, P.A., 613 So. 2d

136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th

DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v.

Stanlev, 226 So. 2d 129 (Fla. 4th DCA 1969).


(29)

IV. A Foreclosure Action Wrought With Fraud Is Void And Must Be Dismissed

1. Landmark National Bank v. Kesler, 289 Kan. 528,216 P.3d 158 (2009). "Kan. Stat. Ann. § 60-

260(b) allows relief from a judgment based on mistake, inadvertence, surprise, or excusable

neglect; newly discovered evidence that could not have been timely discovered with due

diligence; fraud or misrepresentation; a void judgment; a judgment that has been satisfied,

released, discharged, or is no longer equitable; or any other reason justifying relief from the

operation of the judgment. The relationship that the registry had to the bank was more akin to

that of a straw man than to a party possessing all the rights given a buyer." Also In September

of 2008, A California Judge ruling against MERS concluded, "There is no evidence before the

court as to who is the present owner of the Note. The holder of the Note must join in the

motion."

2. Sufficient "Good Cause" to permanently vacate a judgment and dismiss action with prejudice

is the showing of fraud to the Court (See Fla.R.C.P., Rule 1.540). The presentment in a court

of False testimony either orally and or by submission of known fallacious statements of fact in

Affidavits or Assignements of Mortgage constitute Intrinsic Fraud. See Deelaire v. Yohaman,

453 So. 2d 375,377 (Fla. 1984).

3. Pursuant to Florida Rule 1.540, a Florida Court has the absolute intrinsic power and jurisdiction

to vacate and dismiss an action due to fraud and unconscionability. On motion and upon such

terms as are just, the court may relieve a party or a party's legal representative from a final

judgment, decree, order, or proceeding for the following reasons: (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) that the judgment or decree is void.


(30)

4. The integrity of the civil litigation process depends on 'truthful disclosure" of facts. A system

that depends on an adversary's ability to uncover falsehoods is doomed for failure. Cox v.

Burke, 706 SO.2d 43, 47 (Fla. 5th DCA 1998).

5. Numerous Judges throughout the State of Florida have lamented the minority of lawyers and

parties that abuse the discovery process and litigation; See The Fla. Bar vs. Miller, 863 SO.2d

231 (Fla. 2003).

6. In the State Of Florida, Honesty in filing and prosecuting of Foreclosure Lawsuits is paramount.

Defendants cite the case of Baker vs. Myers Tractor Services in stressing the view of Florida

Courts on the importance of Honest and Ethical Conduct; "honesty is not a luxury to be

invoked at the convenience of a litigant, but rather, complete candor must be demanded in

order to preserve the ability of this court to effectively administer justice." Baker v. Mvers

Tractor Services, Inc., 765 SO.2d 149,150 (Fla. 1st DCA 2000).

7. The court's power to impose an involuntary dismissal exists because no litigant has the right to

trifle with the courts. Morgan v. Campbell, 816 SO.2d 251,252 (Fla. 2nd DCA 2002).

8. The decision and power to dismiss a Plaintiff's Foreclosure Action in Florida lies in the

discretion and hands of the Court. The right to dismiss an action is also an obligation of the

court to deter fraudulent claims from proceeding in court. Savino v. Fla. Drive In Theatre, 697

SO.2d 1011, 1012 (Fla. 4th DCA 1997).

The Defendants

By: __ ~~~ __ ~ __ ~ _ Date:


------~--~---------------

BY:---T~H-~-T++~~~----- Date:
----~-+----~-------------

Karen & John Krondes


110 Woodside Green, #2A
Stamford, CT 06905
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT IN
AND FOR ST. LUCIE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION


CASE NUMBER: 56-2008-CA-000066
JUDGE: BEN BRYAN

EMC MORTGAGE CORPORATION

Plaintiff EXHIBIT A
VS:

KAREN A. KRONDES, ET AL
Defendants(S). MARCH 5, 2009
_____________________________________ .1

DEFENDANTS' REQUEST FOR PRODUCTION

The Defendants, Karen A. Krondes and John J. Krondes.jn the above-entitled action.respectfully .'.

request that the Plaintiff, EMC Mortgage Corporation, respond to the following RequestsFor. .', -''C..

Production, pursuant to Rule 1.350, Fla R Civ. P.. It is hereby requested that the herein mentioned

Plaintiff produce the following items within thirty (30) days of service.

DEFINITIONS

A. The Term, "person" as used herein shall mean an individual, corporation, partnership, Joint

venture, group, association, body politic, governmental agency, unit or other organization.

B. The Terms "document" and as used herein shall refer to original written correspondence,

memoranda, listings, accounts, records of account, ledger sheets, contracts, agreements,

computer records, electronic or digitally recorded data, or any other data, compilation or written

material of any kind or character.


(2)

DOCUMENTS TO BE PRODUCED

1. The Original Note and or Mortgage Agreement, referred to in the Plaintiff's complaint in the

above captioned matter, EMC Mortgage Corporation Vs. Karen A. Krondes, Et AI

2. Any Original Written Agreement and or Contract made or executed between EMC Mortgage

Corporation and Karen A. Krondes and John J. Krondes

3. Any Original Written Agreement and or Contract or Note, referred to by the Plaintiff in its

complaint, where Plaintiff claims to Own and Hold the Note and Mortgage, as stated in COUNT

I paragraph 5.

4. An Original Signed Promissory Note, with original ink signatures, _ex_~cutedand delivered.by .. , .-. " s r-

Karen A. Krondes and John Krondes on March 5,2007, as claim.eJtbyJbeJ?ICiintiffin_-CPUNT-L c· •• - '. __

paragraph 3 of its complaint.

5. Any original written documented agreement and or contract that gave the Plaintiff the legal

right to Own and Hold the Note and Mortgage it refers to in COUNT I paragaraph 5 of the

complaint.

6. The Original, Signed, Note or Agreement and or Contract, from Karen A. Krondes and John J.

Krondes, authorizing and consenting to EMC Mortgage Corporation representing the financial

interests of Karen and John Krondes.

7. Any original, signed written Agreement and or Document that advised Karen A. Krondes and

John J. Krondes, that EMC Mortgage Corporation wished to handle the mortgage on the

Defendant's property.

8. Any original, signed written agreement and or document that was signed between Wells Fargo

Bank and EMC Mortgage Corportation, authorizing EMC Mortgage Corporation to take control

of the Defendant's Mortgage on the subject property of this complaint.


(3)

9. Any original, signed and written document from Wells Fargo Bank advising the Defendant's

that per agreement between Karen A. Krondes and John J. Krondes with EMC Mortgage

Corporation, that Wells Fargo Bank would release control and servicing of the Defendant's

Mortgage.

10. Documentation, in written form, that states The Specific Date, that the Plaintiff lost possession

of the Note or Mortgage it claims it held with Karen A. Krondes and John J. Krondes

11. Written Documentation and Proof, that the Plaintiff, EMC Mortgage Corporation, made

reasonable efforts with Wells Fargo Bank, to locate the original Note and Mortgage it claims it

holds with Karen A. Krondes and John J. Krondes.

12.Written Documentation and proof that the Plaintiffwasinfactin possessionof theNoteand ...... ,-

Mortgage it claims it controlled with Karen A. Krondesand JohnKrondes-endjhe specificv,

dates it received proof that it was legally in control and possession of said Note and Mortgage.

13. Written Documentation and proof of authorizing corporate representatives of EMC Mortgage

Corporation, showing their original signatures, names and dates, on Contracts and or

Agreements, giving EMC Mortgage Corporation the legal right to be in possession of the Note

and Mortgage it is foreclosing on in this matter.

14.Any and All Written Documents, Requests, Letters or other communications the Plaintiff EMC

Mortgage Corporation made or sent or submitted, inclusive of the dates, as proof of

reasonable steps that were taken to obtain possession of the Note and Mortgage it is

foreclosing on.

15. Any and all written communication or documents that reflects and states the names and

identification of the authorizing representatives at both Wells Fargo Bank and EMC Mortgage

Corporation who agreed upon the release and transfer or control and or ownership of the Note
and Mortgage that the Plaintiff is foreclosing on, from Wells Fargo Bank to EMC Mortgage

Corporation.

(4)

The Defendants

By: Date:
---7~--------~~-------
es
--------------------------

By:~~~~~~_+----------- Date:
------~------------------~

Karen & John Krondes


110 Woodside Green, #2A
Stamford, CT 06905

Tel: (203) 981-1926 Cell


(917) 518-6164 Office
c"(203) 972-3497 Home . _ ", \ _-, .-'.;'_-~ r;;:;" , ~

Email: JJKrondes@yahoo.com

CERTIFICATE OF SERVICE

The Defendants, Karen A. Krondes and John J. Krondes, hereby certify that a true and correct copy

of the foregoing Answer and Counterclaim has been furnished via Fax, EMail & U.S. First Class Mail

on March 5, 2009 to the office of the Plaintiff's counsel David J. Stern, P.A. at the address of 900

South Pine Island Road, Ste. 400, Plantation, FL 33324-3920-3920.

Additional Service made to:

Robert Rydzewski, Esq.


Attorney For Princess Condominium Association
P.O. Box 66
Stuart, FL 34995
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT IN
AND FOR ST. LUCIE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION


CASE NUMBER: 56-2008-CA-000066
JUDGE: LARRY SCHACK

EMC MORTGAGE CORPORATION

Plaintiff EXHIBIT B
VS:

KAREN A. KRONDES, ET AL
Defendants(S). March 17,2010
-------------------------------------,

REQUEST FOR PRODUCTION OF DOCUMENTS

The Defendants, Karen A. Krondes and John J. Krondes, in the above-entitled action, request

that the Plaintiff, EMC Mortgage Corporation, respond to the following RequestsForProduction.. . '- ~;"

pursuant to Rule 1.350, Fla R. Civ. P.. It is hereby requested thatthe herein mentioned Plaintiff

produce, within thirty (30) days of the service hereof, the following documents:

1. All Letters Of Sale or Assignment beginning with and from the original alleged Lender, to with,
and between each and all entities and or Real "Natural Persons" who have and or may make
claim to have been an alleged Lender/Creditor and or owner/holder of this original alleged and
disputed Note, Mortgage and debt.

2. Documentation illustrating precisely the complete Chain and Passing Of Title with respect to
this alleged and disputed Note and Mortgage, dating back to the first alleged agreement
involving Karen A. Krondes and John J. Krondes with respect to the subject property.

Note: All documents requested in this Request For Production, must include the valid legal
proof of mailing to either Karen A Krondes, John Krondes, or both, inclusive of Dates of
Mailing and a copy of cancelled postage stamp, and address mailed to.
(2)
3. If this alleged Note and Mortgage was at any time Securitized in any manner or method, during
or prior to your alleged claim of ownership, produce documentation which discloses fully and
completely the identity of each and every shareholder, investor, and or purchaser of interest of
this subject Krondes Mortgage.

4. If this alleged Note and Mortgage was at any time Securitized, during or prior to your alleged
claim of ownership, produce a copy of the precise legislated law or statute(s) relied upon which
particularly stipulated and granted legal permission to EMC Mortgage Corporation, and or any
other prior alleged lender, holder, servicer, and or other alleged owner, to take the home and
personal assets of Karen A Krondes and John J Krondes and bundle and or otherwise create
an investible product out of such assets.

5. If this alleged Note and Mortgage was at any time Securitized, during or prior to your alleged
claim of ownership, produce a copy of the prospectus and or other offering circular which
included the home and personal assets of Karen A Krondes and John J Krondes.

6. The specific disclosure letter, with proof of mailing, that EMC Mortgage Corporation sent to
notice Karen A Krondes and or John J Krondes for purposes of explicitly apprising them and
divulging the full details and conditions of any alleged created and issued securitized
investment product, which included the subject Note and Mortgage, and respective Home and
Personal Asserts of Karen A Krondes and John J. Krondes.
(3)
7. The specific disclosure letter, with proof of mailing, that EMC Mortgage Corporation sent to
notice Karen A Krondes and or John J Krondes for purposes of explicitly apprising them and
divulging the full details and conditions of the alleged sale and or other transfer of the subject
Note and Mortgage from the previous alleged lender or owner.

8. Any and all Documentation which discloses and reveals the true and exact purchase price
EMC Mortgage Corp allegedly paid for the rights to purchase the subject alleged Note and
Mortgage of Karen A. Krondes and John J. Krondes.

9. Any and all contracts or other agreements made by EMC Mortgage to purchase Bl!lk Lots of
Defaulted and or underperforming Loans, which may have included thesubject Krondes t'Jote_._. __.._.
and Mortgage to any degree. ..~ ..,";;. ,-;::':;--

10. Produce the Law that allowed EMC Mortgage Corp. the right to legally collect monthly
mortgage payments from the mortgagors Karen A. Krondes and John J. Krondes, when such
alleged assignment was plead in the Plaintiff's Complaint as being not yet recorded, and "To
Be Recorded", and furthermore not so attached to the Complaint at time of service and
commencement of this action.

11. Produce documented proof that the alleged Lost and or Stolen Note was reported as such at
the alleged time of loss (As Stated In The Complaint) to a proper authorized State or Federal
Agency consistent with procedure outlined in the SEC Rule 17f-1, and or other applicable rule
or law. Specific date and authority of which report was filed is hereby required.
(4)

12. Produce the original Letter and Notice of alleged Default and Intent To Accelerate, with respect
to the alleged and disputed subject Note and Mortgage, with dates and proof of certified
mailing and delivery.

13. Provide a copy of the Disclosure Letter, with proof of mailing and delivery, which was sent as
evidence that all appropriate terms and conditions, governing law, costs, interest rate,
commissions, rebates, kickbacks, fees and or other required items were properly and lawfully
revealed at the inception of the alleged contractual relationship with Karen A. Krondes and
John J. Krondes, after alleged purchase by EMC Mortgage of this alleged and disputed Note
and Mortgage.

14. Produce all records, statements, account numbers, reports or other identifying documentation
that relates to any account, outside of EMC Mortgage Corporation, that was connected in any
way to the alleged Mortgage with Karen A. Krondes and John J. Krondes.

15. Produce any and all documents, letters, faxes, Emails, notes, memos, and or other
communications or other records, that identify the parties outside of EMC Mortgage
Corporation that had any monetary connection to the alleged subject loan.
(5)

16. Produce a complete and true list that identifies all Securitized and or bundled investment
products created by, and or in part from the assets of Karen A. Krondes and John J. Krondes'
home located at The Princess Condominium, 9650 S Ocean Drive,Unit #207, Jensen Beach,
FL, which is the subject of this lawsuit.

17. Produce a complete and accurate list of any and all Trusts, Mortgage Asset-Backed
Certificates, REITS, and or other type of alternative investment, public investment, and or
sharing commodity built and established, in any way, through the stated and subject home and
assets of Karen A. Krondes and John J. Krondes; beginning with the first alleged note and loan
with the first alleged creditor and or owner/holder .

. 18. Specifically provide documentation which names, identifies, and fully describes any Securitized.. .
and or other bundled investment product, trust, Mortgage Asset-Backed Certificates, or other
securities created particularly by EMC Mortgage after alleged transfer and or purchase of this
alleged and disputed Note and Mortgage. Method of offering and investment purpose of any
and all such products must also be explicitly elucidated.

19. Produce the express agreement made between Karen A. Krondes and John J. Krondes with
EMC Mortgage Corporation, and or any alleged prior owner, lender, holder, or servicer,
specifically authorizing EMC Mortgage Corporation and or any other third party to use the
personal assets and home of the Krondes' for purposes of any and all securitization and or
bundling, and or creating of any type of Trust or other investable product.
(6)

20. Produce the express agreement and authorization of any State and or Federal Banking
Agency and or other, who was aware of, condoned, and specifically allowed any Bundling,
securitization, creation of any trust and or other Mortgage Asset-Backed Certificate or Security;
such authorization granting and given to EMC Mortgage Corporation and or any and all prior
and original alleged Creditors and or Owners/Holders of the subject alleged and disputed Note
and Mortgage.

21. Produce and identify the complete list, and or other record, of names and parties that were in
possession, and or claimed to be in possession of the alleged Note and Mortgage; dates,
location, "natural person" name and corporate name if any shall be included.

22. Produce the Notice Of Right To Rescission in compliance with the Truth In Lending-Act, 15
U.S.C. -1601 that was sent to either or both Karen A Krondes and John Krondes advising·
them of their rights relating to Rescission. Dates of Notice and proof of mailing is requested.

23. Produce the complete list of names and provide documentation that identifies fully the
Parties that witnessed either or both Karen A Krondes and John Krondes sign any agreement,
contract, note, promissory letter or document, that in any way relates to the subject alleged
Mortgage with EMC Mortgage Corporation.

24.Any and all written Good Faith offers by the Plaintiff made to the Defendants Karen A Krondes
and or John J Krondes showing any gesture to work out any solution, proposed payback plan
or settlement to satisfy or cure the alleged debt or default.
(7)
25. Produce the documents illustrating a complete list and description of the disclosures that
were made to the Defendants and Consumers Karen A Krondes and John J Krondes at the
alleged closing for the subject loan.

26.Produce copies of all the required disclosure letters that were sent to Karen A Krondes and or
John J. Krondes by EMC Mortgage Corporation upon commencement of alleged ownership,
assignment, and or other servicing arrangement, with respect to the subject alleged and
disputed Note and Mortgage which is the subject of this lawsuit.

27. Produce the written disclosure that was given to the Defendants Karen A Krondes and or John
J Krondes advising such parties that the Plaintiff EMC MortgageCorp.oration:wilL=hav.ELa: "_ , ',:0:: :~;-

security interest in the subject property.'· .. ----- - .. '. "-.'::'",,-;,,-,-,~,-,..,-~.,,;.:

28. Produce each and every document bearing the Defendants Karen A Krondes and John J
Krondes' name which is under the control of the Plaintiff EMC Mortgage Corporation.

29. Produce the written notice sent to Karen A Krondes and or John Krondes (The Consumers)
when EMC Mortgage Corporation began collecting the alleged loan after the alleged default.
(8)

30. Produce the original written Notice Of Default that was sent to Karen A Krondes and or John
Krondes, inclusive of all attachments, all disclosures, and descriptions of how and to whom the
alleged debt was owed.

31. Produce the first and original written Notice sent to Karen A Krondes and or John Krondes by
Law Offices Of David J Stern when said attorney's allegedly began collecting the alleged loan
after the claimed default.

32. Produce a copy of the notice of acceleration allegedly mailed to the defendants before
filing of this lawsuit.

33. Produce the documents that describe EMC Mortgage's process in analyzing the
borrower's willingness and ability to repay the loan that is consistent with prudent lending
practices.

34.A Copy of all document(s) that are relied upon by the Plaintiff to demonstrate the Plaintiff
had legal standing to bring and maintain this lawsuit.
(9)

35.A copy of any and all documents provided to the Defendants Karen A Krondes and John J
Krondes at the time of original alleged application through alleged closing, including all TILA
and RESPA disclosures.

36. Produce a complete list of all other lending institutions, separately from EMC Mortgage
Corporation, which were allegedly involved in any way in the subject loan and mortgage with
Karen A. Krondes and John J. Krondes.

37. Produce any and all documents, records, letters, Emails, Faxes, Memos, and or other written
communication which identifies the last prior seller, from whom EMC Mortgage Corporation
.alleqes it bought and or otherwise acquired the subject Krondes Note and Mortgage. . _..... . __
• -_.--.,:-'
-.,.v. __
..• __ " •... I' ~, .._.. :_-, ~., "_~
!_·\.~ ••-''-...:.:l •.. ;.~''-.'_;;....._!:~_.~_'' ., •••.....• '--••......•••..
_ •.••..

38.Any and all loan data obtained by EMC Mortgage Corporation from the last prior owner and
seller of the alleged Krondes Mortgage.

39. Produce the first original written communication sent to Karen A Krondes and or John J.
Krondes after purchase and or other assignment of the alleged loan by EMC Mortgage
Corporation.
(10)

40. Produce any and all written documentation and or other records which EMC Mortgage
Corporation possessed and relied upon which accurately offered proof that Defendants Karen
A Krondes and or John J Krondes were in Default when it first initiated communication with
said Defendants.

41. Produce all records and data used by EMC Mortgage Corporation to verify that Defendant's
Karen A Krondes and or John J Krondes were in alleged material default before this
Foreclosure Lawsuit was filed.

42. Produce the FDCPA (Fair Debt Collection Practices Act) required disclosure letters and . ., .'.. _
notices which were sent to Karen A Krondes and or JohnJKrondes,upon,commer:lcement of "cc;,"', .
alleged servicing of said Defendant's alleged and disputed Mortgage~anc:lLoan.,' . ~.----- --- ~~.~,-:'-

43, Produce all records, and make full disclosure, of any and all charges, loan modification fees,
points, commissions, and or other fees added to the alleged principle balance of Defendants'
alleged loan after purchase and or other assignment by EMC Mortgage Corporation.

44. Produce any and all telephone records and or statements which reflect and disclose each and
every phone call to date made by EMC Mortgage Corporation in connection to collection of this
alleged and disputed debt since acquiring of said alleged loan by EMC Mortgage.
(11 )

45.Any and all records and accounting papers or other invoices of any property inspection fees
billed to the alleged subject loan balance of Defendants Karen A Krondes and or John J
Krondes by EMC Mortgage Corporation.

46. Any and all records and accounting papers or other invoices of any appraisal fees billed to the
alleged subject loan balance of Defendants Karen A Krondes and or John J Krondes by EMC
Mortgage Corporation.

47. Produce all records and accounting of the total of all fees; late fees, penalty fees, and or other
which comprised part of the total alleged loan balance when purported ownership and or other .....,-."
assignment began by EMC Mortgage with respect to th~subje;cU~r9,nd_~s.lq~_n~C:HJd=m<?r:tga£ile." .. .:>o:: i"

48. Produce all records and accounting of the total of all fees; late fees, penalty fees, and or other
which have been billed to the total alleged loan balance after purported ownership and or other
assignment began by EMC Mortgage with respect to the subject Krondes loan and mortgage.

49. Produce all accounting records in possession of EMC Mortgage Corporation which elucidate in
precise detail how Plaintiff arrived at the calculation of what Defendants allegedly owe.
(12)

50. Any and all written documents, records, papers, agreements, contracts, Emails, letters,
memos, notes, and or other communication between any and all employees of EMC Mortgage
Corporation and Bear Stearns Companies, LLC (Bear Stearns) relating in any manner to the
subject Krondes property, loan, note and mortgage.

Note: All references herein this Request For Production to the Subject alleged Note, Mortgage, Loan
of Karen A Krondes and or John J Krondes (Defendants) pertain specifically to a property
located at 9650 S Ocean Drive, Jensen Beach, FL 34957.

The Defendants

By:~~~ _ Date:__ ~-,-(l_l...J../_l u _

By:~~~~~~~ _ Date:~6 JP'\l D

Karen & John Krondes


110 Woodside Green, #2A
Stamford, CT 06905

Tel: (203) 981-1926 Cell


(917) 518-6164 Cell
(203) 274-5277 Home

Email: JJKrondes@yahoo.com
(13)

CERTIFICATE OF SERVICE

The Defendants, Karen A. Krondes and John J. Krondes, hereby certify that a true and correct copy

of the foregoing Request For Production has been furnished via U.S. First Class Mail on March 17,

2010, to the office of the Plaintiff's counsel David J. Stern, P.A., at the address of 900 South Pine

Island Road, Ste. 400, Plantation, FL 33324-3903.

Additional Service Was Made to:

Attorney For Princess Condominium


Attn: Robert Rydzewski, Esq.
P.O. Box 66
,.,.- - - Stuart, FL 34995 -- ' _ .....
" ~-~~-..!

...- .....•..

Karen A. Krondes and , Defendants


EXHIBIT C
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY. STATE OF FLORIDA

U.S. BANK NATIONAL ASSOCJA TION. AS TRUSTEE, ET AL


Plaintiff.
vs. CASE NO. SI-2007-CA-6684ES
ERNEST E. HARPSTER
Defendant.
!
AMENDED ORDER GRANTING MOTION TO COMPEL, GRANTING
MOTION IN LIMINE AND GRANTING MOTION FOR REHEARING

THIS CAUSE came on to be heard on March 1.2010 upon the Defendant,


ERNEST E. HARPSTER'S Motions to Compel. Motion in Limine/Motion to Strike and
his Motion for Rehearing. The court heard argument of counsel for the Defendant and
makes the following findings of fact:

1) The Plaintiff was properly served with a Second Amended Notice of Hearing
dated November 19,2009.

2) The hearing time was set for March 1. 20 10 at 3 p.m. for a 20-minutehearing
but the Plaintiff failed to appear. The Plaintiffs law firm has 10ng,experience:..\Vilh~aJJiIJg:.:;·
in to participate in hearings with this court. whether noticed as telephonic hearings or not.

J) The court delayed the hearing until 3: 10 p.m.: however. after sounding the halls
and after awaiting telephonic communication from the Plaintiff. the Plaintiff still failed to
appear. An assistant for Plaintiffs counsel called at about 3:44 p.m. to find out the
outcome of the hearing.

4) The three motions of the Defendant were properly before the court: a Motion to
Compel Responses to Interrogatories and Request for Production; Amended Motions in
Limine regarding the Promissory Note and a Second Motion in Limine/Motion to Strike
based on an allegation of fraud on the court; and finally a Motion for Rehearing.'

5) Regarding the Motion to Compel, the court finds that the Plaintiff has failed to
produce answers to the Interrogatories for a period of 26 months, between the time the
Interrogatories and the Request for Production were served on January 8,2008 and the
date of the hearing on the Motion to Compel took place on March 1, 20 I O. Additionally,
the court finds that the Plaintiff failed to produce responses to the Request for Production
propounded in July 2009.

6) The Defendant's Motion in Limine/Motion to Strike was based on an allegation


that the Assignment of Mortgage was created after the filing of this action, but the
document date and notarial date were purposely backdated by the Plaintiff to a date prior
the filing of this foreclosure action.
U.S. Bank National Assoc., as Trustee v. Ernest E. Harpster 51-2007-CA-6684-ES

7) The Assignment, as an instrument of fraud in this Court intentionally


perpetrated upon this court by the Plaintiff, was made to appear as though it was created
and notarized on December 5, 2007. However, that purported creation/notarization date
was facially impossible: the stamp on the notary was dated May 19,2012. Since Notary
commissions only last four years in Florida (see F.S. Section 117.01 (l ), the notary
stamp used on this instrument did not even exist until approximately five months after the
purported date on the Assignment.

8} Confirming this, the Notary Bonding Company's representative, Erika


Espinoza. stated in a sworn affidavit that the Notary Stamp used by Terry Rice, the
Notary, did not exist on the purported date is was notarized. Specifically, Espoinoza
testified in her affidavit that the notary stamp didn't come into existence until sometime
in April 2008. fi vc months after the date on the Assignment.

9) The affidavit of Erika Espinoza was un-rebutted by any pleading, testimony, or


affidavits of the Plaintiff.

10) The Motion for Rehearing alleged proper legal grounds for rehearing the
Defendant's Motion to Dismiss, based on newly discovered evidence and discovery of ".' ...• _:. L"_

fraud on the Court. ~ " " .

II) The court specifically finds that the purported Assignment did not exist at the
time of filing of this action; that the purported Assignment was subsequently created and
the execution date and notarial date were fraudulently backdated, in a purposeful,
intentional effort to mislead the Defendant and this Court. The Court rejects the
Assignment and finds that is not entitled to introduction in evidence for any purpose. The
Court finds that the Plaintiff does not have standing to bring its action. (See BAC
Funding Consortium, Inc. ISONATIMA v. Genelle Jean-Jacques, Serge Jean-Jacques,
Jr. and U.S. Bank National Association, as Trustee fo rthe C-Bass Mortgage Loan Asset
Backed Certificates, Series 2006-CB5 (2nd DCA Case No. 2D_Q8-3553) Feb. 12,2012.)

12) The Motion to Strike is moot.

1J) The court finds that the Defendant is the prevailing party in this litigation and
is therefore entitled to an award of attorney's fees and costs to be determined in a future
evidentiary hearing before this Court.

14) This Amended Order reflects the court's additional finding regarding the
telephone call from the law offices of the Plaintiff at 3 :44 p.m. and corrects the date the
Request for Production was served upon the Plaintiff by the Defendant and the length of
time those requests went unanswered.
U.S. Bank National Assoc., as Trustee v. Ernest E. Harpster 51-2007-CA-6684-ES

IT IS THEREFORE. ORDERED AND ADJUDGED THAT:

1) The Motion to Compel is granted. As a sanction for egregious failure to


comply with discovery Rules the Plaintiff shall be prohibited from presenting the alleged
Promissory Note to this Court.

2) The Motion in Limine is granted. The Plaintiff shall be prohibited from


introducing into evidence the alleged Promissory Note.

3) The Second Motion in Limine is granted. The Plaintiffs recording and filing
regarding the fraudulent Assignment of Mortgage is stricken, and the Plaintiff is
prohibited from entering the Assignment of Mortgage into evidence.

4) The Motion for Rehearing of Defendant's Motion to Dismiss is granted and


the Motion to Dismiss is granted. The Plaintiffs complaint is dismissed with prejudice,
based on the fraud intentionally perpetrated upon the Court by the Plaintiff. This Court
has the power to dismiss a case u~on a showing of a commission of fraud on the Court by
a party. (See Taylor v. Martell (41 DCA, 2005). Also, F.R. C.P. 1.150 allows the striking
of sham pleadings upon a proper showing. The Defendant shall go.henceforth without
day. . "

5) This Court reserves ruling on the issue of the amount of reasonable attorney's
fees and costs to be awarded the Defendant. Attorney's fees shall be assessed in favor the
Defendant against the Plaintiff at a future evidentiary hearing. D. .v",.. .
one and t.JniB\·'~":c;
Done and Ordered this __ day of March. 20] 0 at Dade City. F1oriAa. at Dade City,
r8Sca County, Florkta

MAR 2 ~ 2Ulu
LYNN "TEPPER---f!Jput aeope«,
CIRCUIT JUDGE Circuit Judge
Cc: David Stem, P.A
IN THE CIRCUIT COURT OF THE 19TH JUDICIAL
CIRCUIT, IN AND FOR ST. LUCIE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
•••••••••••••••••••••••••••••• CASENO:
EMC MORTGAGE CORPORATION

PLAINTIFF
.562004' ·CA(f)Cth6;1~.
VS. ASSigned to ~ .~..'
KAREN A. KRONDES; UNKNOWN SPOUSE OF
KAREN A. KRONDES IF ANY; JOHN KRONDES;
Judge Ben Bryan .~
.~
.~?~~
:c>""'~'P"
.--: O-"f.'
UNKNOWN SPOUSE OF JOHN KRONDES IF ANY; ~/.,;.;o;
ANY AND ALL UNKNOWN PARTIES CLAIMING
BY, THROUGH, UNDER, AND AGAINST THE
.&> ~o~2
,:c:..••.-;.~
HEREIN NAMED INDIVIDUAL DEFENDANT(S) ~~~~A·~~:
'''-'1.1': • .(.)
WHO ARE NOT KNOWN TO BE DEAD OR ALIVE,
WHETHER SAID UNKNOWN PARTIES MAY
CLAIM AN INTEREST AS SPOUSES, HEIRS,
DEVISEES, GRANTEES OR OTHER CLAIMANTS; EXHIBIT D ;S~t
THE PRINCESS CONDOMINIUM ASSOCIATION
OF HUTCHINSON ISLAND, INC.; JOHN DOE AND
JANE DOE AS UNKNOWN TENANTS IN
POSSESSION

COMPLAINT TO FORECLOSE MORTGAGE


AND TO ENFORCE LOST LOAN DOCUMENTS
Plaintiff, sues the Defendant(s) and alleges: : ...•...

COUNT I
I. THIS IS AN ACTION to foreclose a Mortgage on real property in ST. LUCIE County, Florida ..
2. This Court has jurisdiction over the subject matter herein.
3. On MARCH 5, 2007 KAREN A. KRONDES AND JOHN KRONDES, BOTH SINGLE ADULTS
executed and delivered a Promissory Note and a BALLOON Mortgage securing payment of the Note to
the Payee named thereon.
4. The Mortgage was recorded on MARCH 12,2007 in Official Records Book 2777 at page 2512, of the
Public Records of ST. LUCIE County, Florida, and mortgaged the property described in it, then owned by
and possessed by the Mortgagors, a copy of the Mortgage IS attached hereto as "Exhibit "A". Said
mortgage was subsequently assigned to EMC MORTGAGE CORPORA nON by virtue of an assignment to
be recorded.
5. The Plaintiff owns and holds the Note and Mortgage.
6. The property is now owned by the Defendantis), KAREN A. KRONDES AND JOHN KRONDES, if living
and if dead, the unknown spouses, heirs and beneficiaries of KAREN A. KRONDES AND JOHN
KRONDES who hold(s) possession.
7. There is a default under the terms of the note and mortgage for the APRIL 1,2007 payment and all
payments due thereafter.
8. All conditions precedent to the acceleration of this Mortgage Note and to foreclosure of the Mortgage have
been fulfilled or have occurred.
9. The Plaintiff declares the full amount payable under the Note and Mortgage to be due.
10. The borrowers owe Plaintiff $296,000.00 that is due in principal on the Mortgage Note and Mortgage,
together with interest from MARCH I, 2007, late charges, and all costs of collection including title search
expenses for ascertaining necessary parties to this action and reasonable attorney's fees.
:;~;
~II. Plaintiff is obligated to pay its attorney a reasonable fee for his services rendered.

12. Defendants, John Doe and Jane Doe, may claim an interest in the property described in the Mortgage as

tenants pursuant to a lease agreement, either written or oral. Said interest is subject, subordinate, and

inferior to the lien of the Mortgage held by Plaintiff.

13. In addition to all other named defendants, the unknown spouses, heirs, devisees, grantees, assignees,

creditors, trustees, successors in interest or other parties claiming an interest in the subject property by,

through under or against any of said defendants, whether natural or corporate, who are not known to be

alive or dead, dissolved or existing, are joined as defendants herein. The claims of any of said parties are

subject, subordinate, and inferior to the interest of Plaintiff.

14. The Defendant(s) THE PRINCESS CONDOMINIUM ASSOCIATION OF HUTCHINSON

ISLAND, INC IS joined because IT may claim some interest in or lien upon the subject property by

virtue of a CLAIM OF LIEN recorded in Official Records Book 2859 at Page 2887 in ST. LUCIE

COUNTY which is inferior to Plaintiffs Mortgage described herein.

15. The Defendant, UNKNOWN SPOUSE OF KAREN A. KRONDES is joined because SHE may

claim some interest in or lien upon the subject property by virtue of a possible homestead interest. Said

interest is subject, subordinate and inferior to the interest of the Plaintiffs mortgage.

16. The Defendant,UNKNOWN SPOUSE OF JOHN KRONDES isjoined because HE may claim

some interest in or lien upon the subject property by virtue of a possiblehomesteadinterest, _Sl!igjnt,ef.e~Us"." _, ,_ "

subject, subordinate and inferior to the interest of the Plaintiffs mortgage.

'- WHEREFORE,"Plaintiffprays': That an accounting may be had and taken under the direction of this Court

of what is due the Plaintiff for principal and interest on said Mortgage and Mortgage Note, and for the costs, charges

and expenses, including attorney's fees and title search costs, and advancements which Plaintiff may be put to or

incur in and about this suit, and that the Defendants found responsible for same be ordered to pay the Plaintiff herein

the amounts so found to be due it; that in default of such payments, all right, title, interest, claim, demand, or equity

of redemption of the Defendants and all other persons claiming by, through, under or against said Defendants since

the filing of the Lis Pendens herein be absolutely barred and foreclosed and that said mortgage property be sold

under the direction of this Court; that out of the proceeds of said sale, the amounts due the Plaintiff may be paid so

far as same will suffice; and that a deficiency judgment be entered if applicable and only in the event no Order of

Discharge of Personal Liability in Bankruptcy has been entered as to any of the Defendants who signed the subject

Note and Mortgage and a Writ of Possession be issued.

COUNT II

17. This is an action to enforce a lost, destroyed or stolen promissory note and Mortgage under

Fla.Stat. §673.3 091.

18. On MARCH 5, 2007, KAREN A. KRONDES AND JOHN KRONDES, BOTH SINGLE ADULTS,

executed and delivered a Promissory Note and a Mortgage securing payment of the Note to the payee
named thereon.

19. The Mortgage was recorded on MARCH 12, 2007 in Official Records Book 2777 at page 2512, of the

Public Records ofST. LUCIE County, Florida, a substantial copy of the Mortgage being attached hereto as

composite Exhibit "A" to the Plaintiffs original Complaint herein.


~20. The Plaintiff is not presently in possession of original Note and Mortgage. However,
.~ a) the Plaintiff was in possession of the Note and Mortgage and was entitled to enforce THEM when
the loss of possession occurred;
b) the loss of possession was not the result of a transfer by Plaintiff or lawful seizure; and
c) the Plaintiff cannot reasonably obtain possession of the Note and Mortgage because THEIR
whereabouts cannot be determined.
21. The terms of the Note are shown on the attached ledger of loan marked as Exhibit "-:P---'"
22. The Plaintiff will agree to entry of a Final Judgment of Foreclosure wherein it will be required to indemnify

and hold harmless Defendant(s), KAREN A. KRONDES AND JOHN KRONDES, from any loss

they may incur by reason of a claim by another person to enforce the lost Note and Mortgage.

WHEREFORE, Plaintiff requests entry of judgment confirming its right to enforce the lost Note and
Mortgage under Fla. Stat,§673.3091.

TO ALL DEFENDANTS: PLEASE NOTE EFFECTIVE OCTOBER 13,2006, ]5 U.S.c. §1692G OF THE
FAIR DEBT COLLECTION PRACTICES ACT HAS BEEN AMENDED AS FOLLOWS:

(a) LEGAL PLEADINGS -- Section 809 of the Fair Debt Collection .~r~li~~~bl:tJ!5JJ~S.~.).Q~~g»),s,_ =co, ." ••••• "H _~~.

amended by adding at the end the following new subsection:


. ~I(d)Legal Pleadings -- A communication ~he'f10fa ~~I!IJ,~~L
formal pleading in a.cJ.Y.!L~"c;ti9n ..._.._...,' _
be treated as an initial communication.Itir purposes fs section (a)." 7
" / /

"'
.///
. ,,"

A M. MUSELLA
I
Offices of David J. Stem, P.A.
A 0 / ey for Plaintiff
801 S. University Drive Suite 500
Plantation, FL 33324
(954) 233-8000
07-24678 (EMC) Bar #: 0030527

F:IGROUPSIFCDOCSICOMPLAINl01107.24618.CMP
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Pro Vest,LLC. S07-24678·


4520 Seedling Circle - Tampa, FL -·33614 - (813)877-2844 - FWS..(&13) 7)9-3800

AFFIDAVIT OF SERVICE

IN THE CIRCUIT COURT OF


rLAINTlfF
ST. LUCIE COUNTY, FLORIDA
.....!:EM=C'-'M=O~Rc!.T~G~A:!'G:!:E:..!C:.!:O~R~PO.=RA~T..:;IO::.N~
_
EXHIBIT E
vs.
DEFENDANT --,_--..:.KA~R:..::E::..:N..!..A!:...
!.!:KR!!:O~ND~E=S:...,
ET::..:...;A:..:;L:;::. _
DEFENDANT:rO BE SERVED: KARENA. KRONDES ~---------

CASENO __ ~~~-;200~8~~A~.OO~OO~6~6_ lYrE OF PROCESS [x) SUMMONS & COMPLAINT (x) US PENDENS
( )OTHER~ ~
DMSION ..,...,..----

_________________ Sl _

ADDRESS WHERE SERVED 360 WEST 34TH STREET APARTMENT SH


(fW TiQp'l r;l)>
NEW YORK, NY 10001

.9<'IN DIVIDUAL SERVICE: By delivering to the within named defendant a true copy of this process with the date and hour of service endorsed by me, and, at the same time I
delivered to the within named defendant a copy ofthe complaint.
( ) SUBSTITUTE SERVICE: By leaving 8 true copy of this process with !he date and hcur of service endorsed by me and a copy of the complaint by leaving the copies at
(his/her) usual place of abode, with some person residing therein who is fifteen years of age O!" older to wit: (Name) _

(Relationship) , and infonning such person of their contents, pursuant to F.S. 48.031.
( ) CORPORATE, PARTNERSHIP, ASSOCIA nON OR GOVERNMENT SERVICE: By delivering a true copy of the process with the dale and hour of service endorsed by

me and a copy of Ibe complaint to: as (title) of said entity.


( ) In absence ofthe president, vice-president, other head oflhe corporation, cashier, treasure. secretary, generalmanager, director, offjceulr,busincss. agent residing, in .the state ..
as defined by f.S. 4H.OBI. .
) For failure of the Registered Agent to be hislher designated place for service pursuant to 48.091 and by serving the above named.person lIS CIlJpl!lye.e.£Lsai.l\c_O!POl'lItiollil! ~",="=,,,
the corporation's place of business. ....... ,. "",' .....
) POSTED: Pursuant 10 F.S.48.18J(I).
) NON-SERVICE: By return the same on for the reason thai aller due and diligent search through the following methods
the within named could not be located:
Immediate neighbors, telephone book and information operator, U.S. Postal search. local credit bureaus, Drivers License and Department of Motor Vehicles.

) Military Status: ( ) Refused ( ) Yes Branch: _


( ) Marital Status: [ ) Refused ( ) Married ( ) Married, but separated
Vin: _
( ) Mobile Home ( ) YcsNlN Not Visible ( ) Yes

COMMENTS:

AND~A MOLODY
NotaryPublicState of New York
No.OlM06037166
Qu~!~fied in:SufrolkCounty I
mrmsion H"Pires-~F~ 14,20-.-9
ProVest,LLC. S07-24678
4520 Seedling Circle -- Tampa, FL - 33614 - (813) 877-2844 - Fax. (813) 739-3800

AFFlDA VIT OF SERVIcE

TN THE CIRCUIT COURT OF


PLA~TIIT
ST. LUCIE COUNTY,
~E~M~C~M~O~R~T~G~A~G~E~C~O~RP~O~RA~T~I~O~N~
FLORIDA
_
EXHIBIT F
<vs.
DEFENDANT ~KA~RE~N~A~.~K~R~O~N~DE~.S~'.~8~·~A=L.~ _
J;>EFENDANT TO BE SERVED; JOHN KRONDES ----------------------

CASE N'O --'5"'6-=-2""OO:..:8:...;-C::.;Ac.:.-..:.OO::..;0"'0.::;66"--


__ TYPE OF PROCESS (x) SUMMONS & COMPLAINT (x) LIS PENDENS
DIVISION ~ _ ( )OTHER _

Received this process on the 0_1...;./_1_9....;...1_0_8 at 9_: _O_O_A_M _


I (~sefVcd () n~Xei¥Nl the within named defendant.
ADDRESS WHERE SERVED 491 White Oak Shade Rd.
DATEfTIME 01 /22/08 @ 6: 30 PM (OR ATTEMPTED)
New Canaan, CTn 06840
( ) iNDIVIDUAL SERVICE: By delivering 10 the within named defendant a true copy of this process with the date and hour of service endorsed by me, and, at the same time I
delivered to the within named defendant a copy ofthe complaint. .
W SUBSTITUTE SERVICE: By leaving a true copy of this process with the date and hour of service endorsed by me and a copy of the complain! by leaving the copies at

.(hislhor) usual place of abode, with some person residing therein who is fifteen years ofage or older to wit: (Name)
Florence Krondes
- _

(Relationship) Mother /cotenant .and infonning such person of their contents. pursuant to F.S. 48.031.
( ) CORPORATE. PARTNERSHIP. ASSOCIATION OR GOVERNMENT SERVICE: By delivering a true copy of the process with the date and hour of service endorsed by

me and a copy ofthecomplnint to: .;.~. ..__ . _ ._., as (title) ofsaid entity ..
( ) In absence of the president. vice-president. other head of the corporation, cashier, treasurer. secretary. general manager •.director..officer.nr business-agent.residing ·in-thcst.1te ..
as defined by F.S. 48.08J.
(i For failure of the Registered Agent to be his/he- designated place for service pursuant to 48.09 I and by-serving-the above-namcdperscn as employee of-said corporarionet ~::"''''''''' ... _.- ..... _...
the corporation's place of business. - ---_.- - .
( ) POSTED: Pursuant to F.S.48. I 83( I).
( ) NON·SERVICE: By return the same on --: __ -'+_o!.,_' for the reason that after due and diligent search through the following methods
the within named could not be located:
Immediate neighbors, tetepbonc book and information operator. U.S. Posta' search. local credit bureaus, Drivers License and Depil11ment afMolor Vehicles.

Branch: _
~) Military Status: ( ) Refused K)No ( ) Yes
~) Mantel Status: ( ) Refused X) Not married ( ) Monied ( ) Married, but separated
Vin: _
( ) Mobile Home ( ) Ye,;/VIN Not Visible ( )No ( ) Yes

COMMENTS:

d I am over the age of 18 years and the above affidavit is true and correct
':E"uw~IIl&.40l:Wlll!nLand...lIuUhdatl.U.lA1<djJLl.l...au..~..s..ll.525

Certified Process Server /I +- _


County Hartford OTARYPUBUC
ck.sERVER PERSONALLY KNOWN TO
r )SERVER PRODUCED AS id

Alan Jones
,.--,;:

....•'.
.
'-
EXHIBIT G
IN THE CIRCUIT COURT or '1'1-1£ 19TH
JUDICIAL CIRCUIT, IN AND FOR ST. LUCIE
COUNTY, FLORIDA 0
_ GENERAL JURISDICTION DIVIS 10M ~~
____________ CASE NO: 56-2008-CA-000066 ('~J>. <&
EMC MORTGAGE CORPORATION -'lf4,.CC:'l /J>
PLAINTIFF ~'~ ~J-
~~O"
VS.
0;:-];.,. ~ ~o
Cl./.t-
KAREN A. KRONDES, ET AL o~
~/'
DEFENDANT(S)
AFFIDAVIT IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

EXHIBIT" A"

STATE OF FLORIDA

COUNTY OF BROW ARD

.-----..-.-- --:-,--"---ffEFORE ME; aIibfflc'eTaUtlfOi'tzed to take oaths this day personally' appeared CHERYL··

SAMONS who, being first duly sworn, deposes and says:

1. That your affiant is attorney-in-fact on behalf ofEMC MORTGAGE

CORPORA TION, mortgage loan servicing agent on behalf of the Plaintiff in the above styled

action. EMC MORTGAGE CORPORATION has custody of and supervises the mortgage

accounts and records of the Plaintiff including the accounts and records of the note and mortgage

herein involved.

2. I have personal knowledge of the facts set forth herein and am authorized to make

this Affidavit on behalf of the Plaintiff.

3, I have direct access to or have been provided with the business records ofthe

Plaintiff concerning the Note and Security Agreement, the Mortgage and other loan documents

which are the subject matter of this lawsuit, such records were made at or near the time by, or

from information transmitted by, a person with knowledge, such records were kept in the course
of the regularly conducted business activity of the plaintiff, and it was the regular practice of the

plaintiff to make such records.

4. That each and every allegation in the Complaint is true.

5. Plaintiff is the designated holder of said Note and Mortgage; none of the defaults

alleged in the Complaint filed herein has been cured; and there remains due to Plainti ff on

account of said Note and Mortgage, the following sums:

PRINCIPAL BALANCE OF NOTE: $296,000.00

INTEREST THEREON AT $64.47 PER DIEM


FROM MARCH 1,2007 TO NOVEMBER 30,2008: $41,181.00

LATE CHARGES: $716.45

INSPECTIONS CONDUCTED ON PROPERTY: $174.50'

."_.._'..'.__. __._. .._6P.PMI~.6J:J~J:


.."__
,....__
,__.
..c~ __ ._ $103.00

AD VALOREM TAXES: $11,054.96

TOTAL DUE TO PLAINTIFF AS OF THE DATE


HEREOF (EXCLUSIVE OF COSTS INCURRED BY
PLAINTIFF'S ATTORNEY): $349,229.91

Sa. All late charges were accrued prior to acceleration of the loan.

6. The street address of the subject property is 9650 S. OCEAN DRIVE, UNIT 207,

JENSEN BEACH, FL 34957.

7. Interest on the note at the aforesaid rate shall continue to accrue at the daily rate of

$64.47 for each day after the date of this affidavit; and subsequent to the defaults alleged in the

Complaint filed herein, Plaintiff engaged its attorney of record and in so doing agreed and

obligated itself to pay said attorneys a reasonable fee for their services.

8. This affidavit is intended to show that there is available competent testimony

which can be introduced at trial, if necessary.


1,/--"""
r=>: .
( <, I

\ "'~. \

9. The undersigned Age~tfurthe'~~"~'tatesthat the b~'l()W-described Power of Attorney

has not been heretofore revoked by thePrincipal . and is still in full force and effect.
\

\ .... , ."" "

\.
EMC MORTGAGE CORPORATION
\
\

.,
J.
By:'./-
Cl;:IERYL SAMONS ..".-
r
of The Law Offices of David J. Stern,\p~.,
.. . \ \ .
Its Attorney-in-Fact, pursuant to Power of Attorney,
recorct'ed (q the Public Records of Br()J~rd County.:
Florida "-J ...
\, \.
\.. \" '1
•..• -, !

STATE OF FLORIDA'\ ".J


COUNTY OF BROWARD \ j
. 'V
PERSONALL Y APPEARED BEFORE ME, the undesigned authority in and for the
aforesaid County and State, on this, the __ day of February, 2009· within.my jurisdiction, the
within named CHERYL SAMONS, OF THE LAW OFFICES OFDAVIDISTERN,<B:A.,who ,c:::' .:
. -
..m~_th~ts.he.i$A IIQ.!\NEY IN FACT for and onpehalLofEMCMORTGAGE:
~..,.. _...._A<::19!.oy,,1(;.Qg~<i19 ,-
CORPORATION, known to me to be the person whose name is subscribed to the foregoing
instrument, and she acknowledged to me that she executed the same for the purpose and
consideration therein expressed as the act and deed of said corporation and in the capacity therein
stated. She is personally known to me and did take an oath.

WITNESS my hand and official seal in the County and State last aforesaid this __ day
of February, 2009.
EXHIBIT H
IN THE CIRCUIT COURT 01
CIRCUIT, IN AND FOR ST. L ~-- ~
GENERAL JURISDICTION DIVISION
~~~~~ •• CASE NO: 56-2008-CA-000066
I
EMC MORTGAGE CORPORATION

PLAINTIFF
VS.

KAREN A. KRONDES, ET AL

DEFENDANT(S)

AFFIDA VIT OF PLAINTIFF'S COUNSEL AS TO ATTORNEYS FEES

EXHIBIT "e"
KARINA M. MUSELLA, being first duly sworn, deposes and says:

1. I am counsel for the Plaintiff in the above-styled cause.


2. No contemporaneous time records are kept by the attorneys for Plainti ff un less a foreclosure case
becomes contested. The Plaintiff is contractually obligated to pay its attorneys a flat fee of $1,200.00 to handle th is
uncontested foreclosure case. However, under applicable law, the PLaintiffs counsel believes it is entitled to recover
a reasonable fee to be determined by the Court in excess of the agreed flat fee-provided the Plaintiff and/or the'
Defendant borrower are not required to pay more than the contractual amount set forth above: : _,·c.:,,·.
3. As required under Cohen & Cohen. P.A. v. Ane:rand, 71 a So, 2d 166, 168 (Fla. 3rd DCA .1998),
the fa Ilowing is a reconstruction of approximate time spent on this case by the attorney who handled this file.

Services Rendered

Review ofloan documents, and case file in preparation for filing Foreclosure Complaint 1.0

Review and Revise Draft of Complaint, Notice of Lis Pendens and Summonses, 1.0
Review Final Draft.

Review of all Service Returns/Affidavits from Process Server, veri fy addresses, verify III iIitary 1.0
and marital status of defendants, verify occupancy of property. Note default dates and document
file re: same

Motions for and Orders of, Default, Non-Military Service Affidavits and Notice of Dropping 0.5
Party

Review and Revise Affidavit in Support of Motion for Final Summary Judgment, monitor receipt 1.0
of same, and review,

Review and Revise Motion for Final Summary Judgment, supporting Affidavits, proposed
Summary Final Judgment, and Notice of Hearing. Review Final Draft.

Preparation for and attendance at hearing on Motion for Summary Judgment (estimate) 0,5

Correspondence and telephone conferences with parties, Court, Process Servers 1.5

TOTAL HOURS 8,00


4. A reasonable hourly rate for services rendered herein is $150.00 per ~/
5. Based on the foregoing, J believe a reasonable attorney's fee w~dbe $1,200.00.
//" '

.I / .I

SWORN TO AND SUBSCRIBED before me this

MUSELLA who is personally known to me.

Notary Pu
P'
~ ~ LURYBELL ESQUIVEL
*~ * Notary :ubHc, State of Flo~da
Commission No. DD 52'17".4
1>4'lrn~" My Commission E::;;:, ~~ :;.':!:Ol C
1v'V"'?V"V"?"7~-:~~:,-v--;..;'''';'::;'-;':'';'--t.
EXHIBIT I
IN THE CIRCUIT COURT OF THE
mDIClAL CIRCUIT, IN AND FOR
COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION


~ CASE NO: V) (O-2ODf-CA -t::tI[WO.
c M~ MO(-tepqe. COr {JYU110N,
PLAINTIFF
VS.

~vQn A. \(.vQrX::JC'S, E---i --f\L.


DEFENDANTS

AFFIDAVIT OF PLAINTIFF'S ATTORNEY'S TIME


, . .. , ~, ... ~-, ~,

STATE OF FLORIDA , •• r-. '" ~-••• ,' ~'''.k ~." ~~~ ...•.

COUNTY OF BROW ARD

JORGE L. SUAREZ, being first duly sworn, deposes and says:

1. Your Affiant is a duly qualified and licensed attorney admitted to practice in the Courts of Florida.

2_ Your Affiant has been a practicing member of the Florida Bar since 1990.

3. Your Affiant has experience in the defense and prosecution of suits similar to that in the above captioned
case and is familiar with the factors to be considered in determining the reasonableness of a fee outlined in R_
Regulating Fla. Bar 4-1.5(b) and under Florida Patient's Compensation Fund v_Rowe, 472 So. 2d 1145 (Fla. 1985).

4. Your Affiant has examined the attorney's file in this proceeding, including the Affidavit of Plaintiffs
Counsel as to Attorney's Fees.

5. Your Affiant has no interest in the outcome of this litigation.

6. Your Affiant is not associated with or employed by Plaintiff or by Defendants or by attorneys of either-

7. Your affiant is familiar with the amounts customarily charged by attorneys and allowed by the Court for
attorney's fees in such cases in the area and that $150.00 per hour is a reasonable rate.

8. Your Affiant knows the reasonable value of the services rendered and hours by Plaintiff's attorney and is of
the opinion that the sum of $ 12.c0 .ro
would be reasonable attorney's fees for @'2 hours for the
services rendered in this cause.

SWORN TO AND SUBSCRlBED before me this __ day of rr-----r.--- by


JORGE L. SUAREZ who is personally known to me.

*" *
o~ LURYBELL ESQUIVEL
Dr-Jotary Public, State of Florida
Commission No. DO 524794
'

">~ •• ~ My Commission Expires 3/2/2010


~ TH. K"," COM'AN'.' i.i,c

EXHIBIT J

March 25, 2009

To \\Thorn It May Concern:

Ms. Karen Krondes resided in our building at 360 West 34th Street apartment SH from
December 1, 2004 until November 30,2006,

Yours truly,
"

Sheree R Illfelder
Bookkeeper
I,

300 East 3'F" Street


New York, NY 10016
P 212.481.5700
f 212-"1·81.6485
www.KIBEl.com
lAGEOl : FL-07-21325-2 12/l8/200711:02:38am DOC: OR 2777/2512 Page I of27

EDWIN M. FRY, Jr., CLERK OF THE CIRCUIT COURT - SAINT LUCIE COUNTY
FILE # 3024001 OR BOOK 2777 PAGE 2512, Recordad 03/12/2007 at 03:27 PM
Doc Tax: $1036.00 Int Tax: $592.00
----=------_._----,_.
EXHIBIT K
:-

c----- u

--- \

Poor Quality For


Return To: Scanning
'WELLS FARGO BANK, N.A.
FINAL DOCUMENTS X999~OlM
1000 BLUE GENTIAN ROAD
EAGAN, MN 55121·1663

This doeument was prepared by:


JANICE YOUNG
WELLS FARGO BANK. N.A.
3480 STAnYlEW BLVD.
FORT MILL. SC 28715-

------------ISpaco Abav.
Thlslina
FDr D
R"""ang 1----------
ata

MORTG.'\GF 0158710079

The property herein conveyed doe. not noY nor 'has it ever constituted
the homestead property of the Grantor nor has it been contiguous ",j'l, ':~,_
homwBtead. ..
The Grantor's homestead address is: 110 Woodside Green, 6 2A, ~"~,:urd.
CT. 00705.

DEFINITIONS

Words u.ed In muttlple s.ctlons .-orcth,i. '!'""'''~'I.nt are defined 'below and clner wortls are ..........
-- ~ '~'I:' ':-'"
'-:.
defined In Sections 3, II, 13. 1&, V':';'nd <1. Cer1ain rules regartllng tho usage of wortls used ......
.•-. t ,,' ". ~
in this document are also prO:;!';l'j~<lin Section 16.

'jA) "S"".; •.•~, ••i&tnJmenr' moanslhlsdoeument, which is dated MARCH 5, 2007 '" ,., ~
together with all Riders to this documont.
(B) "Borrower" I.
KAREN A XRONOES AND JOHN KRONOES, ~ .si0j\~ QdJ\~.s

~~("1r,g;.;".~ff:\ti~~,~t¥~~~.~~!~~~j~"·~~~}i::,ll~~~~~f~~~n~'tr:;~~~o'$:r;~'''~;~~W~~}J~\,~h'";:w~~~e#~~.~*.r~~~~~U-~~iU~~;·Z!M~¥j.':(~~.7~A(·JJ.!tt:.~!-tf.1;~;;:i~··."~::·

BOlTQwer I. tho mortgagor'under this Securtty Instrument.


, (C) ,"lMIde'" Is WElLS FARGO BANK, N.A.

Lender Is 8 Hallonal Aaaoclatlon


organized and existing under the laws of THE UNITED STATES OF AMERICA

f1.ORIDA. Singiafamily. F••••• II_Ie II•• UIIIR>RIIDlSmWEliT FOAII 3010 1101

P'O' 1 of I' Inlti.ls: -Y- SFU1 Rev l1JQVOO

<J)L

/ ~-,p
~'.... &....~~JlQr.~b.Y F(}~.:.;..it:&.P.DF.creE
._nsor ~.~~~~,~t~

RO<Jloni,n,g Jln-d TIWI1'1c:ri[JMiO!l, lnc. EXHIBIT L

Page 1
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL
CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

CASE NO: 50 2008 CA 028558 XXXX MB

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS


TROSTEE FOR MORGAN STANLEY ABS CAPITAL 1 INC.
TROST 2006-HE4,

Plaintiff,
vs.

BELOURDES PIERRE; MAGUE PIERRE; ANY AND ALL


UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER
AND- AGAINST THE HEREIN NAMED INDIVIDUAL
DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR
ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM
AN INTEREST AS SPOUSES, HEIRS, DEVISEES,
GRANTEES OR OTHER CLAIMANTS; HYPOLUXO WEST
PROPERTY OWNERS ASSOCIATION, INC. F/K/A
CONCEPT HOMES OF LANTANA, PHASE 9, PROPERTY
OWNERS ASSOCIATION, INC; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC; JOHN DOE AND JANE
DOE AS UNKNOWN TENANTS IN POSSESSION,

Defendants.
----------------------------------------/

900 South Pine Island Road


Plantation, Florida
Wednesday, May 20th, 2009
2:15 p.m.

DEPOSITION OF CHERYL SAMONS

Taken before Ruthanne Machson, Notary Public, in


and for the State of Florida at large in the above cause.

Ph. 561.682.0905 - Fax. 561.682.1771


1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401
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Page 2
1 A P PEA RAN C E S
2
3
4 ON BEHALF OF THE PLAINTIFF:
5
6 Law Offices of David J. Stern, P.A.
900 S. Pine Island Road, Suite 400
7 Plantation, Florida 33324
BY: DONNA EVERTZ, ESQUIRE
8
9
10 ON BEHALF OF THE DEFENDANTS:
-11 ~-
12 Ice Legal, P.A.
1975 Sansburys Way, Suite 115
13 West Palm Beach, Florida 33411
BY: THOMAS E. ICE, ESQUIRE
14
15
16 ON BEHALF OF THE WITNESS:
17
18 DAVID C. BAKALAR, ESQUIRE
450 N. Park Road, Suite 410
19 Hollywood, Florida 33021
20
21
22
23
24
25

Ph. 561.682.0905 - Fax. 561.682.1771


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Page 4

1 Thereupon,

2 CHERYL SAMONS

3 having been first duly sworn or affirmed, was examined

4 and testified as follows:

5 DIRECT EXAMINATION

6 BY MR. ICE:

7 Q. Could you state your full name for the

8 record, please.

9 A. Cheryl Samons.

10 Q. Do you have a middle name?

. .....-c-. __ ~_~ ____


Fl.

12 Q. What is your business address?

13 A. 900 South Pine Island Road.

14 Q. That's in Plantation?

15 A. Yes.

16

17 A. The Law Offices of David Stern.

18 Q. That is where you are employed?

19 A. Yes, sir.

20 Q. How long have you been employed here?

21 A. Fourteen years.

22 Q. I take it you have been deposed many times

23 before?

24 A. Yes, sir.

25 Q. How many times roughly?

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Page 6

1 Q. And that was 14 years ago?

2 MR. BAKALAR: Are you questioning it?

3 THE WITNESS: Yeah, 14, 15 years ago. '94,

4 BY MR. ICE:

5 Q. What are your job responsibilities as

6 Operations Manager?

7 A. It's really hard to qualify that. I do a

8 little bit of everything. I hire, fire, do some H.R" a

9 little document execution.

10 Q. Who do you report to?

,. "--,,,

12 Q. How.many people report to you?

13 A. Directly to me, probably 60 managers report

14 directly to me.

15 Q. There's about 215 employees of David J.

16 Stern?

17 A. No, sir.

18 Q. How many?

19 A. Approximately 900.

20 Q. Hoovers has that wrong.

21 A. That was a few years ago.

22 Q. You mentioned part of your job is to

23 execute documents, correct?

24 A. Yes, sir.

25 Q. And part of that is executing assignments?

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Page 7

1 A. Yes, sir.

2 Q. In addition to assignments you sometimes

3 sign affidavits?

4 A. Yes, sir.

5 Q. How many documents do you sign, on average,

6 say a week?

7 A. To be honest with you, sir, I don't know.

8 Q. Do you have any way of estimating how many

9 documents you sign over a given time period?

10 A. No, sir.

11 .MR. BAKALAR: Object .to the form. Document c

12 is vague and over.

13 THE WITNESS: Because I do sign a lot of

14 documents.

15 MR. BAKALAR: A letter is a document.

16 THE WITNESS: Right. I sign letters, I

17 signs checks, I sign -- I mean, I sign a lot.

18 BY MR. ICE:

19 Q. Fair enough. I'm interested right now in

20 documents that are filed in Stern cases such as

21 assignments, affidavits, things that you are signing on

22 behalf of David Stern clients.

23 Can you estimate

24 MR. BAKALAR: Filed where, filed in a

25 recorder's office, in a court file? Could you be

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• . R~<:1rtin~ -llnod Tn.1]sc:rip¢t.OCl, llllo.

Page 8

1 more specific?

2 MR. ICE: Well, either one.

3 THE WITNESS: I don't have an estimate,

4 sir. I really don't.

5 BY MR. ICE:

6 Q. Do you sign these kinds of documents,

7 affidavits, assignments every day?

8 A. Yes, sir.

9 Q. How long do you spend each day executing

10 these kinds of documents?

11 A. Probably two hours~ ; ".;, ~


~, ;- -,

12 Q. When you spend the two hours, can you

13 estimate how many of these assignments and affidavits and

14 documents you are executing you do in that two hours?

15 A. Again, I would just be giving a random

16 guess, sir. I don't know. There are four floors. There

17 are documents on every floor. It would be just a number.

18 I have no idea.

19 Q. Well, just so we can kind of get an idea.

20 I mean, we're not talking about four or five documents,

21 correct?

22 A. No, sir.

23 Q. Would you say that it's more than a

24 hundred?

25 A. If I had to guess, yes, sir.

Ph. 561.682.0905 - Fax. 561.682.1771


1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401
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Page 9

1 Q. Okay. Is there a number where you would

2 say it's definitely not more than that?

3 A. It's definitely not more than a million. I

4 mean, I really -- I'm sorry. I really don't know.

5 Q. Okay. When you are executing these

6 documents during that two-hour period, that's every day,

7 two hours every day?

8 A. Yes, sir.

9 Q. More or less?

10 A. Yes, sir.

11 Q. It's not scheduled is what you're saying?

12 A. Right, right.

13 Q. But, on average, you would say about two

14 hours a day?

15 A. Yes, sir.

16 Q. And that's five days a week?

17 A. Yes, sir.

18 Q. Do you ever execute any on the weekend?

19 A. Yes, sir.

20 Q. How often do you execute documents on the

21 weekend?

22 A. Maybe once a month or two if we have a

23 project.

24 Q. Okay. And to do that you have to make sure

25 you have notaries --

Ph. 561.682.0905 - Fax. 561.682.1771


1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401
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Page 10

1 A. Notaries, yes, sir.

2 MR: BAKALAR: Objection. Is that a

3 question? Are you making a statement or asking a

4 question?

5 MR. ICE: They are all questions.

6 THE WITNESS: Yes. If I were going to do

7 it on the weekends, there would be one of my

8 managers here who is a notary to notarize with me.

9 BY MR. ICE:

10 Q. How much time do you spend examining each

11 document before you sign them?

12 A. Very little.

13 Q. Do you read the document?

14 A. No.

15 Q. How often do you find an error in the

16 document that you are signing?

17 A. Are we talking about assignments? We are

18 limiting this to assignments, correct, because

19 MR. BAKALAR: Objection to form. What do

20 you mean error? Are you asking for legal error or

21 a factual error? I'm not sure.

27 MR. ICE: Okay. Let me back up a little

23 bit.

24 BY MR. ICE:

25 Q. I am still talking about all kinds of

Ph. 561.682.0905 - Fax. 561.682.1771


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Page 119

1 C E R T I FIe ATE of 0 A T H

2
3
4 The State of Florida,

5 county of Broward

10
11 I, the undersigned authority, certify that

12 CHERYL SAMoNs did personally appeared before, me on the

13 20th day of May, 2009 and was duly sworn.

14
15 WITNESS my hand and official seal this 31st of

16 May, 2009,

17
18
19
20
ROTHANNE MACHSON, Court

21 Notary Public - State of Florida

Commission No. DO 774525

22 Expires March 31, 2012

23
24
25

Ph. 561.682.0905 - Fax. 561.682.1771


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Page 120
1 C E R T I F I CAT E
2
3
The State of Florida,
4 County of Broward.
5
6
I, RUTHANNE MACHSON, Court Reporter and Notary
7 Public in and for the State of Florida at large, do
hereby certify that I was authorized to and did
8 stenographically report the deposition of CHERYL SAMONS;
that a review of the transcript was not requested; and
9 that the foregoing pages, numbered from 1 to 118,
inclusive, are a true and correct transcription of my
10 stenographic notes of said deposition.
11 I further certify that said deposition was
taken at the time_ and place hereinabove set forth and
12 that the tak-ing-of said deposition .wa s commenced ;and. c

completed as hereinabove set out.


13
I further certify that I am not an attorney or
14 counsel of any of the parties, nor am I a relative or
employee of any attorney or counsel of party connected
15 with the action, nor am I financially interested in the
action.
16
The foregoing certification of this transcript
17 does not apply to any reproduction of the same by any
means unless under the direct control and/or direction of
18 the certifying reporter.
19 DATED this 31st day of May, 2009.
20
21~~~T 4'a:-~
22 RUTHANNE MACHSON, Court Report
Notary Public - State of Florida
23 Commission No. DD 774525
Expires March 31, 2012
24
25

Ph. 561.682.0905 - Fax. 561.682.1771


1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401
9. The ndersigned Ag~tes
\"
that the beiQW'descri~e(,Of Attorney

has not been hereto ore revoked by t -e-~tnG-iRal~.iS still in fU~force and effect. \\
\ ~---"~ '\ '\
\fMC~OR'TQAGE CO~~ORATION \
\~'~"'"
\ '"'"'-.,
\ \,
\
\ \ .
\\ <,..
,
By: ""'"
O~ER'yL SAMONS '\ -- \
of~fe Daw Offices of David 1. Stern,~~

\i
Its At{on~~y-in-Fact, pursuant to Powe of~H~'ney\
recorde~ the Public Records of Bra rd C~·'l11Y.'.
Florida

STATE Of FL IDA
COUNTY OF BROW ARD \

PERSONALL Y APPEARED BEFORE ME, the undesigned authority in and for the
aforesaid County and State, on this, the __ day of February, 2009 within my jurisdiction, the
within named CHERYL SAMONS, OF THE LAW OFFICES OF DAVID 1. STERN, P.A.,who
acknowledged to me that she is ATTORNEY IN FACT for and on behalf ofEMC MORTGAGE
CORPORA TJON, known to me to be the person whose name is subscr
instrument, and she acknowledged to me that she executed the same fa
consideratio~ therein expressed as the act an~ deed of said corporation
stated. She IS personally known to me and did take an oath.
EXH IB IT M
WITNESS my hand and official seal in the County and State lasl:-aroTC"SlITcrmrs
__ ay
of February, 2009.

-- . ---------------
IN THE CIRCUlT COURT OF THE 19TH JUDICIAL
CIRCUIT, IN AND FOR ST. LUCIE, FLORIDA
GENERAL JURISDICTION DIVISION
________________ CASE NO: 56-2008-CA-000066

EMC MORTGAGE CORPORA TION


PLAINTIFF
VS.

KAREN A. KRONDES, ET AL
DEFENDANT(S)

AFFIDAVIT OF COSTS
FLA BAR NO: 30527

EXHIBIT "8"

STATE OF FLORIDA)

COUNTY OF BROWARD )

KARINA M. MUSEL A, of the Law Offices of David 1. Stem, being first c EXH I8 IT N
This firm has expend d the following sums on costs:
'-----------

Filing Fee: $255.00

Service of Process: $1,035.00

Abstracting: $325.00

$16.50

Recording Fee

Title Update Charges:

KARINA M. MUSELLA
Attorney for Plaintiff

SWOR TO AND SUBSCRIBE ore me this __ day of February 9, 2009, by KARINA M.


MUSELLA wh is personally known to me.

~~~~~~~E~SQ~U;W~E~ll
~ , lUR'f9. 01 Florida
--;N~~~~~~~~~
*lj
Notary publiC, 5
* Commission No. ~O " 312.12010
. n EXP\TO,
'-A ~\1 CommisslO
">:tit •• ..,.. ,
impairment of its security. Ritch v. Eichelberger, 13 Fla. 169 (1869-71); American Securities Co. v.
Goldsberry, 69 Fla. 104, 67 So. 862 (1915); and Raskin v. Otten, 273 So. 2d 433 (Fla. 3d DCA 1973) ..
g. The provisions of the Note and Mortgage being sued upon in this action confer upon Plainti ff the right to
accelerate all sums due thereunder upon defaul! of those Defendants who hold title to the subject property
and/or are otherwise obligated to pay the required monthly installments. Campbell v. Werner, 232 So. 2d
252, (Fla. 3d DCA 1970).
7. The pleadings and admissions together with the Affidavits attached hereto and those which may be filed
hereinafter, along with any and all depositions which may be hereinafter taken, if any, show that there are
no genuine issues as to any material facts. Accordingly, Plaintiff is entitled to Summary Final Judgment of
Foreclosure as a matter of law upon its claim.
8. The pleadings and exhibits filed herein as well as Plaintiffs Affidavit in support hereof, establish that
Plaintiffs Mortgage was recorded prior to the recording of the instruments creating the lien in favor of those
Defendant(s) who claim an interest in the real property encumbered by the Mortgage. Therefore, any such
interest which may be vested in the aforesaid defendants is subordinate and inferior to the lien of the
Plaintiff's Mortgage. United States v. First Fed. Say. & L. Ass'l}, 155 So. 2d 192 (Fla. 2d DCA 1963).

WHEREFORE, Plaintiff moves the Court to enter Summary Final JudgfT'on' fr.,· ,h" Ilhinlifr

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of Vf:egoing
with supporting affidavits attached as exhibits, ~as mailed this
Mo
day of dl.1,L.
EXHIBIT N-2
KAREN A. KRONDES
360 WEST 34TH STREET, APT 5H
NEW YORK, NY 1000] -----

JOHN KRONDES
491 WHITE OAK S ADE ROAD
NEW CANAAN,C 06840

ROBERT RYDZE SKI,ESQ


ATTORNEY FOR HE PRINCESS CONDOMINIUM ASSOCIATION-l-lrl"'""'l'llol..lTCHINSON ISLAND, INC.
P.O BOX 66
STUART, FL 349 5

CURRENT TEN NTS


9650 S. OCEAN RIVE, UNIT 207
JENSEN BEAC ,FL 34957

"
L~
EXHIBIT 0
7N THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION

GMAC MORTGAGE, LLC,

Plaintiff,
v. Case No. 07013084CI

DEBBIE VISICARO, et al. I

Defendant (s) .
--------------------------------_/

TRANSCRIPT OF:· PROCEEDINGS

BEFORE: Honorable Anthony Rondolino


D}l..TE; April 7, 2010

TIHE: 4:05 p.m.

PLACE :. Pinellas county Courthouse


Room 317
545 First Avenue North
st. Petersburg, Florida

REPORTED BY: Kimberly Ann Roberts


Notary Public
State of Florida at Large

€NCCt - ,""»y 'om"Q»Yj1jQ"¥l)"j=p't«T7»lrcnxrXJX:7'tri'7"7TT=Z'CC'M

RICHARD LEE REPORTING


(813) 229-1588
Tt\!\:IP.A; cma il: ·rf.r@)richurdlec.reportiug ..corn ST. J'ETE.RSJWRG:
100 North Tarnpn Street, Suite ;!,O(lO 535Ct!ntral.t\vt:nuc
Tampa, Flt>riun 3J602 SL Petersburg, Florhlu 33701
2

A.PPEARA.NCES:

STEVEN CHF.PMAN F.RASEF.,ESQUIRE


Law Offices of David J. Stern, FA
900 South Pine Island Road
Suite 400
Plantation, Florida 33324-3920
Appeared via telephone for Plaintiff

MICHAEL ALEX WASYLIK, ESQUIRE


Ricardo, wasylik & Kaniuk, PL
Post Office Box 2245
Dade City, Florida 33526
Appeared for Defendant
5

1 viewed it, extremely targeted motion which

2 basically elaborates on the assertions that

3 were raised at the time of the motion for

4 summary judgment.

5 As I recall that, counsel appeared on

6 behalf of his clients. I think it was by

7 phone

8 MR. WASYLIK: That's correct, Your

9 Honor.

10 THE COURT; -- and made arguments that

the Court really gave short shrift to it, did

12 not review the cases at that. time.

13 since that time, for a number of

]4 reasons, the Court has delved further into it

15 prior to receiving the motion for rehearing,

16 which the Court believes to be very well

17 drafted, and independent of the motion have

18 researched the issues that are raised in the

19 motion.

20 I've had several events which have

21 occurred in cases which cause the court to

22 have great concern about the validity of the

23 filings in our mortgage foreclosure cases, and

24 that precipitated my reevaluation of the

evidentiary considerations.
6

I'll give you an example of that. I

2 have one case that was called up for summary

3 judgment hearing, and I thought it was going

4 to be the typical granted situation, and then

5 a lawyer showed up for the defendant homeowner.

6 I was beginning to recite to the lawyer

7 what I had typically recited, that there was

8 no affidavits in opposition. And the lawyer

9 said, °Well. I thought you might be interested

HI in this, II and handed me some documents which

11 were out of another file in our circuit, and

12 as it turned out, it was the same not.e_and_:-,-c",="'_'

13 mortgage that was in a separate and -

14 independent file.

15 There was a different plaintiff pursuing

]6 a foreclosure proceeding on the same note and

17 mortgage as the one that was being proceeded

18 on. Both of the cases contained allegations

19 in the original complaints that the separate

20 plaintiffs were the owners and holders of the

21 note. Both of them had a count to reestablish,

and both of them had gone so far as to have

23 affidavits filed in support of a summary

24 judgment whereby an individual represen~ed to

15 the Court in the affidavit that the separate


plaintiffs had possessed the note and had lost

2 the note while it was in their possession.

3 Interestingly, both affidavits, although

4 they were different plaintiffs, purported the

5 same facts and they were executed by the same

6 individual in alleged capacity as a director

7 of two separate corporations, one of which was

Il ultimately found to me to be an assignee of

9 the original note.

10 So that really increased my interest in

#!
II this subject matter, because I really honestly

11 -- I don't have any confidence that-any .ot the

13 documents the Court's receiving on these mass

14 foreclosures are valid.

lS But be that as it may, I'm still

16 granting summary judgments unless it appears

17 on the face of the submissions that there is a

18 problem. And I've had a discussion with some

]9 of the other judges about whether the Court

20 can grant a summary judgment based upon

21 inadmissible evidence.

22 And it has been argued to me that the

13 evidence not objected to can be received by a

24 Court in trial, and so it certainly could be

25 considered by a Court at a summary judgment


13

was entered into it was entered into --

2 THE COURT: Okay. vJell, let me just

3 IIlJR. FRASER: -- correctly. That's our

4 position.

5 THE COURT: -- okay. Well, you know,

6 I'm not really trying to be argumentative.

7 I'm trying to --

8 r~lR. FRASER: Sure.

9 THE COURT; -- you know, I'm trying to

]0 rule correctly, and I'm in thB hot seat

11 because I'm the one who gets appealed and

12 reversed on the thing if I just list.en,-to"yoli;

13 and I don't have a -- you know, a founded

14 basis for it.

]5 What I did was, I just put "summary

)6 judgment and hearsay" In Westlaw. The very

17 first case that comes up is a January 12 case

IB out of the 1st District. Jmd it said,

19 "Unsworn medical record review report attached

20 to records custodian affidavit presented by

21 insured in opposition to the uninsured

22 motorist's motion for summary judgment motion

23 was hearsay and could not be considered when

24 ruling on the summary judgment motion."

2S The next case, Mitchell versus


14

Westfield, "Objected on the ground the

2 affidavit and attached schedule was hearsay,

3 insufficient to establish damages Oh summary

4 judgment. ~qe agre e . 11

5 Lloyds Underwriters, "Hearsay statements

6 on the matter would not be admissible into

7 evidence and could not be relied upon to create

8 an issue of fact of summary judgment."

f) Every single case that I'm going through

]0 here says can't do it. That's totally

11 consistent with all of the cases that I've

12 reviewed.

13 So I'm just begging you to send me some

14 cases that would help me because I've got

15 well, in one morning, I've got 50 summary

16 judgments in mortgage foreclosures.

17 I'm looking down at these affidavits,

18 and I'm telling you what's going on in the

19 judge'S mind. I'm looking at them and saying,

20 nobody has objected to this, but maybe I

21 shouldn't be granting this summary judgment.

22 So you might help me out if you could

23 give me a case which stands for the

24 proposition that maybe simply if it's not

15 objected to, I can consider it. I know that's


15
not the case here. But, I mean, that would at

2 least be something, because I haven't even

)¥J 3

4
found any cases which

I can rely on hearsay


support the proposition

even if it's not

5 objected to.

6 MR. FRASER: The affidavit in the

7 instant case is distinguishable than the

8 affidavit in the first case in which you cited

9 in Westlaw. I think that -- ours is a signed

10 affidavit.

11 THE COURT: Yeah, but the affidavit does

1.2 not constitute a basis upon which the; per,so:n~a.-l,;·~, .

13 knowledge of the facts contained therein can

14 be determined. Ie's a business record

15 qualification affidavit is what it is.

16 MR. FRASER: Paragraph Two of our

17 affidavit says that based upon their personal

18 knowledge, theY're authorized to make certain

19 statements therein.

20 THE COURT: You know what I'd really

21 like to see? I'd like to see in one of these

22 cases where a defense lawyer cross-examines,

13 takes a deposition of these people, and we can

24 see whether they ought be charged with perjury

25 for all of these affidavits.


16

1 I would just love to see that. because

2 I'm going to tell you the truth, I had a

3 l,awyer on the phone from Miami telling me that

.; they've got somebody in their office who is

5 autborized by reason of a power of attorney

6 filed as a public record. So that was

7 supposed to be the support that they have for

IS these personal knowledge affidavits.

9 M.R. WASYLI1<: Sir, that waS in this

10 case.

11 THE COURT: Okay.

12 MR . ViASYLIK : That was this affidavi:t.

J3 I apologize for interrupting. I just wanted

]4 -- I remember the Court coming to that

15 conclusion at the time.

16 THE COURT: Okay.

17 MR. WASYLIK: If I may briefly. I think

18 I may assist the Court in very briefly

19 directing the Court to Page Seven of our

10 brief, which addresses the issue of hearsay.

2] Both cases that we have cited on Page

22 Seven, which is the CSX Transport case was

23 actually cited on Page Six, bu~ quoted on Page

24 Seven. The last line of that, Your Honoy,

25 says. "Thus, the affidavit is based on hearsay


20
So when put in the context of the

2 constitutional right of the parties to have

3 their trial on any facts that could decide

4 their case, I think that that would -- that

5 pretty thoroughly rebuts the discretion

6 argument being lobbied by the plaintiff in

7 this case.

8 THE COURT: Well, I have in my hand when

9 you started your argument Zoda and CSX. Both

1U of those cases deal with an insufficiency of

1l an affidavit based upon examination of

12 business records or the contents of:.recoxds .r>:

13 and they both are 2nd District cases which

14 seem to be very closely on point with the case

15 that we have today.

16 I'm also enlightened by Jones versus

17 Florida Workers' Compensation, which is a 2001

18 2nd District case that finds that the

19 affidavit was insufficient in that it had

ro allegations that all the assertions and

21 allegations in the complaint are true, that

22 kind of an affidavit is insufficient.

23 I also reviewed Hurricane Boats versus

24 certified Industrial Fabricators and found

15 that affidavit to be insufficient when it


21

related to the allegations in the complaint

2 being true.

3 I'll note that there are -- there is a

4 significant difference in the foundation a

5 witness has for establishment of business

6 records and the ability of that witness to

7 testify about those facts. Authentication

8 of a record is different than admissibility.

9 And I'll note the case of Dollar

]0 versus State of Florida, which is 685 So.2d

11 901. Similar concerns have been expressed by

12 the Courts with regard to the authen~icatiDn' ,_

13 of official records in Monroe County verstis

14 McCormick at 692 SO.2d 214 and other cases.

15 In regard co the inadmissibility and

16 hearsay, this Court has determined that the

17 1st, 2nd, 3rd and 4th and 5th Districts have

18 all recited in cases the fact that inadmissible

19 hearsay cannot be considered at a summary

20 judgment and applies this rule,not only to the

21 affidavits of the plaintiff in support of -- or

22 a movant in support of a summary judgment, but

23 also affidavits in opposition.

24 The 5th DCA in Mullan versus the

25 Bishop of the DioceSe at 540 So.2d 174


22

reversed a summary judgment based upon

2 hearsay. The 1st District in Rose versus

.3 ADT, 989 So.2d 1244. reversed a summary

4 judgment. And the 1st District in Pawlik,

5 P-a-w-l-i-k, at 528 So.2d 965 had some

6 observations about the inadmissible hearsay,

7 the 3rd District in Capello, 625 So.2d 474.

8 And to perhaps address the concerns

9 that I brought up about the non-objection, I

10 have found one case which appears to stand for

J ] the proposition that even under circumstances

12 where the -- there was an--unopposed"a_ffc~d9-'::\T-.it,

!3 the appellate court reversed lower court. And

J4 this was in a forfeiture case, 2nd District

15 Court of Appeal. This is the In Re: Forfeiture

16 of a 1 9 8 0 For d pic kup, 77 9 So. 2d 45 0 . Th ere

17 was a summary judgment proceeding.

JB The detective's affidavit was

19 inadmissible hearsay and, thus, was not

20 competent to support the summary judgment of

21 forfeiture in the case, even though it's noted

12 in the opinion tha t "\~e reversed the

23 forfeiture because it was based upon a summary

24 judgment that the trial court had entered in

25 reliance on unopposed but insufficient


23
affidavits, pursuant to the Florida Rule of

2 Civil Procedure 1.510 (e) .11

So base upon those ana otITer cases, th

Court has had -- rm going to have to grant

t e motlon and set aSlae the previously

a.mprovidently entered summary judgment in tnis

All right.

8 MR. WASYLIK: Your Honor, would you like

9 me to take a crack at drafting the order then?

10 THE COURT: Yes. Ma]ce it simple.

11 MR. WASYLIK: Yes, Your Honor.

12 THE COURT; Okay. T~ank you very ml-l~cb f'..:'-"';'-~:'"

13 Counsel.

14 MR. FRASER; Thank you.

15 THE COURT: All right.

10 MR. FRASER: Bye.

17 (At 4:25 p.m .• the proceedings

IB conclude. )

19

20

21

22

23

24

25
24

CERTIFICATE OF REPORTER

STATE OF FLORIDA:

COUNTY OF HILLSBOROUGH:

I, Kimberly Ann Roberts, Notary Public in

and for the State of Florida at Large, do hereby

certify that I reported in shorthand the foregoing

proceedings at the time and place therein designated;

that my shorthand notes were thereafter reduced to

typewriting under my supervision; and that the

foregoing pages are a true and correct, verbatim

record-or th ev a f o r e s a i d p r o c e e d i n q s .

Witness my hand and seal April 12, 2010, in

the City of Tampa,

Florida.

n Roberts
Notary Pub ic
State oE Florida at Large